Lawyers Manual - Unified Court System

92 Jill M. Zuccardy
Pre-Trial Practice
Aggressive litigation forces all parties and the court to focus on the case
more intently and may result in moving it along more quickly. Immediately upon
being retained, the attorney should serve a Notice to Produce and a Demand for
a Witness List upon CPS. If the case record is provided early in the case, the
attorney must see to it that she receives updated records as the case progresses.
A non-respondent parent also is entitled to discovery and, at minimum, the attorney
should request the case record. If discovery is not provided, the attorney may make
a motion to compel.
The attorney also should consider filing a Demand for a Bill of Particulars.
The mother is entitled to know when and where the incidents are alleged to have
occurred, and under what circumstances. In particular, in cases in which CPS
argues that the battered mother was “offered services” and “failed to cooperate,”
CPS must identify what services were allegedly offered and how they would
have contributed to the safety of the child. 40
If there is a foster care or preventive services agency involved, the attorney
also should subpoena its records and interview the foster care worker. The foster
care agency is not represented by CPS counsel and may be contacted directly,
although the agency may have internal policies that prohibit the caseworker
from speaking to a parent’s attorney.
The attorney also should consider filing a motion to dismiss all or some of
the neglect charges, especially those related to the domestic violence. Although
only the Court of Appeals decision in Nicholson is binding on state courts, the
federal Nicholson decision also contains an excellent discussion of the issues at
hand in child welfare cases involving domestic violence. The attorney also
should consider filing a motion under the Family Court Act on the grounds that
the court’s “aid is not required on the record before it.” 41 Since the intent and
purpose of the Family Court Act is not to punish but rather “to help protect
children,” 42 it follows that if the child is safe there is no need to expend judicial
resources on the family.
The attorney also should consider whether to seek appointment of a social
worker for the mother if she is indigent to assist her in navigating the social
services systems with which she comes in contact and to assist the attorney in
assessing the issues in the case. 43 If appropriate, the social worker also may be a
fact witness at trial.