The Contested Jurisdictional Hearing (ADJ, Trial #1)

Assuming that you were not in agreement with some or all of the recommendations of the DI in the Jurisdictional/Dispositional report filed by the social worker; you are entitled to a trial. I refer to this trial as the Adjudication Hearing, or trial number 1 (ADJ, Trial#1).

The first thing you should do is schedule a meeting with your attorney to review and develop a legal strategy that could lead to the return of the children to your home.

Important things have to be completed for trial preparation:

1. The interview of certain witnesses, if possible
2. The subpoenaing of these witnesses to court, and making sure you have a proof of service for each witness. (If you don’t have the proof of service, and the witness doesn’t show, then you won’t have a basis to have the court issue a warrant to have the witness brought to court).
3. Review and discovery of documents, and the subpoenaing of these documents to court.
4. The law permits you to conduct discovery under Local Superior Court Rules and/or the State California Rules of Court.

In my opinion, this is a step which is not used enough. The social worker’s records and files (which are different from the court’s records and files) should be obtained and reviewed. There is always the strong possibility that these records and documents will contain information that could assist in your defense.

1. Before the hearing, or trial, you should work on an opening or closing argument with your attorney. These are not always used, and not always required by the court, but it is an excellent way to organize the case for its eventual presentation.
2. Special attention should be given to analyzing the case from the perspective of every participant, the judge, the social worker and her attorney, and the minor’s attorneys’, etc. Too many times I see clients, and other attorneys, only giving consideration from their own perspective. forgetting that there are sometimes many other competing perspectives in the court room. If these aren’t considered, you are not adequately preparing for the trial.

At this point, I must disclose something that is unique to juvenile dependency proceedings. “Hearsay” evidence is admissible in the social worker’s report, but not by the parents. Yes, this is not a mistake.

It is based on the assumption that the social worker is neutral and objective. An assumption which I have found, in many of my cases, not to be true or accurate.

Many theorize that this assumption is based on simple economics; social workers can’t afford the time or resources to prove a child abuse case the old fashioned way; so the courts and legislature have given them this privilege – which in most cases, turns out to be a huge disadvantage for the parents.

The best thing to do is accept this, don’t fight it; and work to win your case despite the advantage given the county social worker.

At the trial, the social worker and his/her attorney must prove, by a “preponderance” of the evidence, that the allegations by the social worker are true. Some legal theorists define the “preponderance” test as “more likely than not” –  or more than 50%.

In legal circles, it is believed to be very easy, in most cases. for the social worker to do this. So in order for the parent to win, sometimes extraordinary efforts must be taken to defeat the social worker at this stage of the proceedings.

What Happens at the Trial

1. Typically, the trial starts out by the court asking the County Counsel, the social worker’s attorney, if h/she has any documentary evidence to offer into evidence. Most of the time, this consists of the social worker’s reports – submitted in the case.
2. The court then asks defense counsel if there is any objection to the reports being admitted into evidence.
3. Then the county counsel calls witnesses. After which, each attorney has a chance to cross-examine the witnesses as they are called.
4. Then the minor’s counsel goes through the same steps with documentary evidence and witnesses, and his/her witnesses are cross-examined.
5. Then the parents’ attorney goes through the same steps with documentary evidence and witnesses, and his/her witnesses are cross-examined.
6. Then the social worker and her attorney may call “rebuttal” witnesses, to contradict the evidence and the witnesses the parents have presented.
7. After all of this, the attorneys may give the judge closing arguments. Many times, the judge does not want to hear closing arguments, but it’s up to each individual judge.
8. I should mention at this point, that the judge may ask questions of any witness during the proceedings.
9. In my opinion, it does make a difference which side the child’s attorney comes down on, the parents or the social worker’s.

When the minor’s attorney is against the parents, time and consideration should be taken as to how the parents’ attorney will deal with this situation. The possibilities are almost endless; but they all should be carefully discussed with your attorney.