Lawyers Manual - Unified Court System

94 Jill M. Zuccardy
case law and the facts are likely to be proven. This settlement may be advisable
if there is a pending criminal case against the mother because she will not be
admitting facts that could be used against her in criminal court or if the attorney
believes that the evidence at trial may lead to a harsher disposition. An admission,
like an Adjournment in Contemplation of Dismissal, will cause the case to
progress to disposition more quickly.
Trial
The attorney should review carefully the rules of evidence in a child
protective proceeding as set forth in the statute. 46 In particular, although most
evidence at a fact-finding hearing must be competent, hearsay statements of a
child are admissible and may form the basis for an abuse or neglect finding if
they are corroborated.
As prosecutor, CPS presents its case first. It is imperative that the attorney
carefully assess each element of the case to ensure that CPS and the court do not
rest on improper presumptions, such as the presumption that the mother failed to
exercise a minimum degree of care merely because she did not separate from
the abuser or that a child suffered emotional harm from exposure to the domestic
violence. With respect to allegations of emotional harm in particular, it is
important to restrict the caseworker’s testimony to her observations unless she
otherwise qualifies as a mental health expert.
If CPS makes out a prima facie case, the burden shifts to the respondent to
defeat the charge of neglect. Usually, the respondent will testify along with any
other fact witnesses. It is imperative that a battered mother testify about her
help-seeking efforts and safety decisions. Where appropriate, the attorney should
present an expert witness to discuss the reasonableness of her behavior under
the circumstances existing at the time. The expert witness also should be used to
disprove impairment and causation, the other statutory requirements for a finding
of neglect. The expert can challenge the notion that all children are affected in
the same way from exposure to domestic violence and that all impairment is
attributable to exposure to the domestic violence. The expert can testify about the
mother’s imperfect options and, if impairment is established, the unlikelihood
that it was she who caused it. An attorney also may challenge assumptions about
impairment through reference to established literature. 47
The Law Guardian typically presents her case last. Oral closing statements are
the norm, although an attorney may request an opportunity to submit a written