Lawyers Manual - Unified Court System

Representing Domestic Violence Victims in Child Welfare Cases 89
should challenge any attempt to categorize placement in foster care as the “safer
course” or “erring on the side of safety.” The Court of Appeals has rejected this
standard, holding that it “should not be used to mask a dearth of evidence or as
a watered-down impermissible presumption.” 29
Upon seeking a 1028 hearing, the attorney should obtain the case record and
ask whether CPS intends to call any witnesses other than the caseworker. Since
CPS has the burden to prove imminent risk, CPS will present its case first. The
caseworker who investigated the complaint is likely to be the only witness since
hearsay is admissible. Upon the conclusion of the petitioner’s case, the attorney
may make an oral motion to deny the removal petition if CPS does not meet its
three-prong burden of showing imminent danger of harm; that removal is in the
best interests of the child; and, that no reasonable efforts will ameliorate the
danger. If that motion is denied, the attorney must consider what evidence and
witnesses to present on the mother’s case. Documentary evidence of safety and
best interests should be submitted. Witnesses may include a therapist, doctor,
clergy, or others with knowledge of the mother and child’s safety and well-being.
An attorney must consider whether the mother should testify. If the mother
does not testify, CPS is likely to ask that a negative inference be drawn. Whether
the mother testifies will depend on the facts and circumstances, the strength of
the case without her testimony, how the mother will present as a witness and the
judge before whom the application is being heard. The downside of having the
mother testify is that CPS is likely to focus on past violence rather than current
safety. The attorney should object to that line of questioning.
At the conclusion of the hearing, the court will either return the child to the
mother (referred to as a “parole”), continue the child’s remand in foster care or
order the direct placement of the child with a relative or other person. All parties
have the right to an immediate appeal of the decision. If the court orders the child
to be returned, CPS does not have a legal basis for holding the child to complete
its internal protocols such as a discharge medical examination. However, CPS
may assert its right to an automatic stay of the return of the child until 5 p.m.
the next business day after the day on which the order was issued. 30 If the court
orders removal or continued removal, the mother’s attorney also should consider
seeking an immediate stay of the removal order from the Appellate Division.
If the mother does not prevail at the hearing, the attorney should ask CPS,
the court and, where applicable, the Law Guardian, to articulate why they
believe that the child remains in “imminent danger” and how to eliminate the
hurdles to reunification. When services are identified, the attorney should seek a
court order mandating CPS to provide them as well as an order providing for
frequent visitation under the least restrictive circumstances.