Tuesday, October 14, 2014

Family Court: An under utilized resource for the criminal defense attorney

Family court proceedings can be the ultimate source of discovery for the criminal defense attorney. Where a child neglect/abuse petition is filed in family court against a parent of a child or a "person legally responsible" for a child, there is often a companion criminal case.  The allegations in both venues are often identical.  Despite this, criminal defense attorneys (in my experience) seldom contact a client's family court attorney or observe the family court proceedings.  The advantages of having a "companion" family court case are numerous.

Upon the filing of a child abuse/neglect petition under Article 10 of the Family Court Act, an initial court appearance is scheduled within days.  During this appearance, the Respondent (the parent or person "legally responsible" of/for a child) is entitled to an immediate evidentiary hearing (a "1027 hearing" pursuant to Section 1027 of the family Court Act) to determine whether that child should be legally removed from that parent's care during the pendency of the family court proceeding. Witnesses will be called at this hearing and will be subject to cross examination.  Hearsay is admissible at this stage of the proceedings, however the primary Child Protective Services case worker who conducted the "investigation" as to the allegations of child abuse/neglect will most often be the witness called to testify.  That case worker is usually the individual who conducted the interview of the child.

The family court attorney may decide not to request such a hearing on behalf of the client during theses early stages of the proceedings, opting instead to reserve the client's right to a hearing for the return of the child at some point in the future (usually to give the client an opportunity to begin substance abuse treatment for example if there are allegations of substance abuse leading to the initial removal of the child).  Such a hearing is referred to as a "1028 hearing" pursuant to Section 1028 of the Family Court Act.

It may be more advantageous to the client to have certain witnesses cross examined early on in family court in order to assist in the defense of the criminal charges, rather than to wait   The criminal defense attorney may be deciding whether to waive a case to the grand jury without the benefit of discovery.  The Family Court "1027 hearing" may assist a great deal in exploring the allegations.

In addition to the "1027 and 1028 hearings", the Respondent in Family Court child neglect/abuse proceedings is ultimately entitled to a "fact finding hearing" to determine whether the child or children have been abused or neglected by the Respondent(s).  Hearsay is not admissible at this stage of the proceedings, with the exception of a child's hearsay statements if such statements pertain to neglect or abuse and are corroborated.  Consequently, the criminal defense attorney has the potential to gain discovery from two separate evidentiary hearings during which there will evidence pertaining to the very same allegations forming the basis of the "companion" criminal charge(s).

There is more even.... The family court attorney has access to the entire file compiled by the Department of Human Services.  Such a file is truly invaluable.  The Child Protective Case Worker(s) assigned to the case complies the contents of this file.  Child Protective Case Workers write everything in their notes!! I am often surprised by the detail that is included, details of conversations and observations that are often not helpful to them or their case, and often very helpful to yours! Such notes will include details regarding the interview of the child that you will not see in any document generated by law enforcement.

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