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Lawyers Manual - Unified Court System

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Representing Domestic Violence Victims in Child Welfare Cases 89<br />

should challenge any attempt to categorize placement in foster care as the “safer<br />

course” or “erring on the side of safety.” The <strong>Court</strong> of Appeals has rejected this<br />

standard, holding that it “should not be used to mask a dearth of evidence or as<br />

a watered-down impermissible presumption.” 29<br />

Upon seeking a 1028 hearing, the attorney should obtain the case record and<br />

ask whether CPS intends to call any witnesses other than the caseworker. Since<br />

CPS has the burden to prove imminent risk, CPS will present its case first. The<br />

caseworker who investigated the complaint is likely to be the only witness since<br />

hearsay is admissible. Upon the conclusion of the petitioner’s case, the attorney<br />

may make an oral motion to deny the removal petition if CPS does not meet its<br />

three-prong burden of showing imminent danger of harm; that removal is in the<br />

best interests of the child; and, that no reasonable efforts will ameliorate the<br />

danger. If that motion is denied, the attorney must consider what evidence and<br />

witnesses to present on the mother’s case. Documentary evidence of safety and<br />

best interests should be submitted. Witnesses may include a therapist, doctor,<br />

clergy, or others with knowledge of the mother and child’s safety and well-being.<br />

An attorney must consider whether the mother should testify. If the mother<br />

does not testify, CPS is likely to ask that a negative inference be drawn. Whether<br />

the mother testifies will depend on the facts and circumstances, the strength of<br />

the case without her testimony, how the mother will present as a witness and the<br />

judge before whom the application is being heard. The downside of having the<br />

mother testify is that CPS is likely to focus on past violence rather than current<br />

safety. The attorney should object to that line of questioning.<br />

At the conclusion of the hearing, the court will either return the child to the<br />

mother (referred to as a “parole”), continue the child’s remand in foster care or<br />

order the direct placement of the child with a relative or other person. All parties<br />

have the right to an immediate appeal of the decision. If the court orders the child<br />

to be returned, CPS does not have a legal basis for holding the child to complete<br />

its internal protocols such as a discharge medical examination. However, CPS<br />

may assert its right to an automatic stay of the return of the child until 5 p.m.<br />

the next business day after the day on which the order was issued. 30 If the court<br />

orders removal or continued removal, the mother’s attorney also should consider<br />

seeking an immediate stay of the removal order from the Appellate Division.<br />

If the mother does not prevail at the hearing, the attorney should ask CPS,<br />

the court and, where applicable, the Law Guardian, to articulate why they<br />

believe that the child remains in “imminent danger” and how to eliminate the<br />

hurdles to reunification. When services are identified, the attorney should seek a<br />

court order mandating CPS to provide them as well as an order providing for<br />

frequent visitation under the least restrictive circumstances.

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