Standards of evidence

Post and discuss your research and resources.

Moderators: family_man, LindaJM

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Standards of evidence

Postby Marina » Mon Jun 19, 2006 7:39 pm

HHS -- Defining neglect


http://www.childwelfare.gov/pubs/userma ... glectb.cfm
- - - - - - - - - - - - - - - - - - -

CHILD NEGLECT:
A GUIDE FOR INTERVENTION
James M. Gaudin, Jr., Ph.D.
April 1993

http://nccanch.acf.hhs.gov/pubs/userman ... 20poverty'
- - - - - - - -

Child Protective Services: A Guide for Caseworkers. 2003.
Author(s): Office on Child Abuse and Neglect (DHHS)
DePanfilis, Salus
Year Published: 2003

Chapter Six: Initial Assessment or Investigation

Determining Child Neglect

http://www.childwelfare.gov/pubs/userma ... s/cpsf.cfm
- - - - - - - - -

A Coordinated Response
to Child Abuse and Neglect:
The Foundation for Practice
Jill Goldman
Marsha K. Salus
with
Deborah Wolcott
Kristie Y. Kennedy
2003

http://216.109.125.130/search/cache?p=t ... 1&.intl=us

- - - - - - - - - - - -

adding 7/1/06

HHS Proving Child Maltreatment in Court

Working With the Courts in Child Protection
Jane Nusbaum FellerwithHoward A. DavidsonMark HardinRobert M. Horowitz
1992U.S. Department of Health and Human ServicesAdministration for Children and FamiliesAdministration on Children, Youth and FamiliesNational Center on Child Abuse and Neglect
This manual was developed and produced by The Circle, Inc., McLean, VA, under
Contract No. HHS-105-88-1702.

http://nccanch.acf.hhs.gov/pubs/userman ... 0virginia'

PROVING CHILD MALTREATMENT IN COURT

35The Process of Proving Maltreatment
35The Rules of Evidence
35Why They Exist
35How Evidentiary Rules Affect the Caseworker
35Types of Evidence
35Relevant and Material Evidence
37The Hearsay Rule
37Admissions of a Party
37Excited Utterances38Records
38What Records Are Admissible?
38Getting Records Into Evidence
39Statements Made for the Purpose of Diagnosis or Treatment
39The Residual Exception
39Special Statutory Exceptions for Child Sexual/Physical Abuse Victims
40Privileged Communications
40Opinion Evidence
41Expert Testimony
41Scope of Permissible Expert Testimony
42Character Evidence
42Prior Acts Evidence
43Stipulations
43Rules of Evidence and the Nonlegal Professional
43How Much Evidence Is Required?
43TESTIFYING IN COURT
45Courtroom Dress and Demeanor
45Direct, Cross, and Rebuttal Examination
45Guidelines for Testifying in Court
48Professionals as Witnesses in Sexual Abuse Cases
49Know the Facts of the Case49Have an Opinion
50The Essential Points of the Testimony
51The Weaknesses of the Position and Cross-examination
51Objections by Attorneys and the Judge’s Response
51THE CHILD AS A WITNESS
53Competency
53Judicial Authority To Make a Child Witness More Comfortable in the Courtroom
53Sequestration of Witnesses
54Special Legislative Provisions for the Protection of Child Witnesses
54Constitutional Challenges to Special Treatment for Child Witnesses
55Leading Questions, Anatomical Dolls, and Other Aids to Securing Child Testimony
56Children as Witnesses in Sexual Abuse Cases
56Preparing the Child To Testify
56The Setting
56The Court Process
57The Child’s Recollection
57Additional Suggestions for Preparing Children to Testify
57The Impact of the Federal Children’s Justice Act and the Victims of Child Abuse Act

- - - - - - -

State Statutes Search
http://www.childwelfare.gov/systemwide/ ... /index.cfm
Last edited by Marina on Sat Jul 15, 2006 12:33 pm, edited 6 times in total.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Natl. Study of CPS

Postby Marina » Mon Jun 19, 2006 7:48 pm

National Study of CPS Systems and Reform Efforts

http://216.109.125.130/search/cache?p=p ... 1&.intl=us

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

New Jersey - model for investigations

Postby Marina » Mon Jun 19, 2006 7:53 pm

Model for investigations

http://216.109.125.130/search/cache?p=p ... 1&.intl=us

posting under New Jersey


C. Burden of Proof


"There is a significant difference between the burden of proof in Civil (DYFS) vs Criminal (law enforcement) court matters. For this reason, a criminal matter can be dismissed for lack of evidence or inadmissible evidence, lack of suitable testimony (a child/victim is seen to be too frightened, too inconsistent to testify in court), or for other reasons. The burden of proof in criminal matters is "beyond a reasonable doubt," a 99% confidence that an identified alleged offender committed the identified crime.


Civil matters, on the other hand, require as a burden of proof only a "preponderance of the evidence," a 51% confidence that an incident occurred and an identified individual was responsible ("more likely than not ...").


Because of these differing burdens of proof, an individual could be completely exonerated from all criminal charges and proceedings, yet be found responsible for the alleged act by DYFS or in Civil Court."
Last edited by Marina on Tue Jun 20, 2006 4:28 pm, edited 1 time in total.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

NY Standards of Evidence

Postby Marina » Mon Jun 19, 2006 8:04 pm

NY Standards of Evidence

http://www.cqc.state.ny.us/counsels_corner/cc33.htm


posting under NY

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Mich- Pitfalls of expert testimony

Postby Marina » Mon Jun 19, 2006 8:18 pm

Pitfalls of expert testimony

http://www.truthinjustice.org/pitfalls.htm

"It is important to understand a fundamental difference between the legal and treatment forums at this point. In the legal forum (as in scientific or research psychology), the entire process begins with a presumption of innocence or a position of neutrality and leads to a finding of fact as a result of evidence presented (followed by an application of law). In the mental health treatment forum, there must be an assumption of facts not in evidence (diagnosis and treatment plan) before treatment can begin. Thus, after noting that the presenting problem is alleged abuse, the therapist states that the goal of treatment is to help the child understand and deal with the abuse which is presumed to have happened."

posting under Michigan & psychiatry

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Standards of proof- preponderance vs. clear & convincing

Postby Marina » Mon Jun 19, 2006 8:47 pm

Standards of proof


Low Income Parents victimized by Child Protective Services , by Candra Bullock

http://216.109.125.130/search/cache?p=p ... 1&.intl=us

Preponderance of evidence at adjucatory hearing vs. clear & convincing evidence at termination hearing

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Sufficient evidence court cases, Nebraska, Shelby L. case

Postby Marina » Tue Jun 20, 2006 6:29 am

Sufficient evidence court cases, Nebraska, Shelby L. case


http://www.accessmylibrary.com/comsite5 ... tal_Rights

http://www.nebar.com/resources/nelawexp ... cjul20.htm

- [Evidence:] (Proof.) For a juvenile court to terminate parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2004), it must find that termination is in the child’s best interests and that one or more of the statutory grounds listed in this section have been satisfied. The State must prove these facts by clear and convincing evidence. ••• In a juvenile proceeding to terminate parental rights, the evidence adduced to prove termination on any statutory ground other than Neb. Rev. Stat. § 43-292(7) (Reissue 2004) is highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse.



posting under Nebraska & TPR cases

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Insuff. evidence- Tenn, TPR, In re A.L.B., N.W.B. and C.B.B

Postby Marina » Tue Jun 20, 2006 6:50 am

In re A.L.B., N.W.B. and C.B.B.
Court of Appeals of Tennessee, at Nashville
No. M2004-01808-COA-R3-PT, July 6, 2005


http://www.tsc.state.tn.us/opinions/TCA ... 08COAR3PT'

posting under Tennessee and

TPR cases

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Insufficient evidence- Indiana- Matter of R.J.

Postby Marina » Tue Jun 20, 2006 7:02 am

In re the Matter of R.J.
Court of Appeals of Indiana, Fifth District
No. 45A05-0411-JV-614, June 28, 2005


http://www.in.gov/judiciary/opinions/pd ... 502mpb.pdf


posting under Indiana
and TPR

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Insufficient evidence- Missouri- case of S.T.C

Postby Marina » Tue Jun 20, 2006 7:41 am

Insufficient evidence

In the Interest of S.T.C.
Court of Appeals of Missouri, Southern District
No. 26298, June 23, 2005



http://www.courts.mo.gov/courts/pubopin ... enDocument


"However, "[c]ourts have required that abuse or neglect sufficient to support termination under section 211.447.4(2) be based on conduct at the time of termination, not just at the time jurisdiction was initially taken." In the Interest of K.A.W., 133 S.W.3d 1, 10 (Mo.banc 2004). "Past behavior can support grounds for termination, but only if it is convincingly linked to predicted future behavior." Id. at 9-10."


"There is no question that there was evidence that Child has been under the jurisdiction of the juvenile court for more than one year preceding the termination hearing. However, the evidence cited by the trial court in support of its findings under this ground does not substantiate the contention that the conditions under which jurisdiction was assumed continued to exist. Those conditions were Appellant's alleged use of cocaine, and, according to Ms. Cobb's testimony, Appellant's "instability to keep a home and a job." There was no evidence at trial that Appellant continued to use cocaine, and, as stated previously, there was no testimony that Appellant suffered from a chemical dependency.
Subsequent to custody being taken, the only reference we find regarding Appellant's alleged substance abuse was, according to Maria Graham, Appellant's admitted use of marijuana in May of 2003. Ms. Graham testified that the barrier to reunification was Appellant's "continued substance abuse." We do not find this to be substantial evidence that "the conditions leading to the assumption of jurisdiction continue to exist[.]" (FN4)
Furthermore, we found no testimony to support the finding that the continuation of the parent/child relationship greatly diminishes the child's prospects for early integration into a stable, permanent home. There was no testimony received on this issue, although there was evidence that Child is developing normally and that the foster parent "indicated a willingness" to "consider adopting [Child]."
The finding that Appellant failed to keep a stable home or job was not supported by the evidence at trial. Throughout Ms. Graham's service as Appellant's caseworker, Appellant lived at the same address, and there was no testimony that Appellant's housing was inappropriate, or that there was "drug activity in and about the premises." Ms. Graham testified that Appellant was working in a part-time position, at Food for Less.
"[A] parent's failure to comply with a written service agreement does not, in itself, constitute a ground for termination parental rights." C.N.G., 109 S.W.3d 702, 707 (Mo.App. 2003). "It is merely a factor to consider in deciding whether the grounds set out in section 211.447.4(3) exist." Id. The evidence at trial regarding Appellant's noncompliance with the social service plan, we believe, was not sufficient to justify termination of her parental rights. That mother failed to complete parenting classes to which Appellant had been referred prior to Ms. Graham's assignment as caseworker was not within Ms. Graham's personal knowledge, as she stated that she thought the referral was made within the first six months of the juvenile court taking jurisdiction, a period of time in which Ms. Graham was not assigned to Appellant's case. Further, there was no testimony that Appellant was "discharged from several programs due to positive drug screens and non-compliance[.]"
As to the finding that Appellant failed to provide verification of successful completion of counseling, Ms. Graham's testimony was: "We had asked that [Appellant], first and foremost, complete her drug and alcohol abuse treatment, and we would continue follow-up therapy as needed from there." She then indicated that they never got "to the second step." [Tr. 45] We cannot find testimony to support this finding.
"The goal of a termination hearing is not to justify termination, but to determine if grounds exist for termination." K.A.W., 133 S.W.3d at 19. "It is only when grave and compelling reasons exist that parental rights should be severed[.]" In the Interest of A.R.S., 609 S.W.2d 490, 491 (Mo.App. 1980). "The severance of the parent-child relationship is an exercise of awesome power which requires literal compliance with statutory authority." In re S.P.W., 707 S.W.2d 814, 820 (Mo.App. 1986). "By requiring strict compliance with the rules of evidence, we help to insure that a decision to terminate parental rights is made only on reliable, credible and relevant evidence." Id.. "Statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship." K.A.W., 133 S.W.3d at 12. As stated previously, the state bears the burden of proof, which must be met by the presentation of substantial evidence. Id. at 9. Here, we do not find that the State met its burden. Point II also has merit.
Because we find that neither statutory ground used for termination is supported by clear, cogent and convincing evidence, we must reverse the termination of Appellant's parental rights.
The judgment is reversed."

posting under Missouri
and TPR cases

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Gold standard of proof for TPR - Santosky v. Kramer

Postby Marina » Tue Jun 20, 2006 9:29 am

Gold standard of proof for TPR - Santosky v. Kramer

http://supct.law.cornell.edu/supct/html ... 45_ZS.html

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

MO- Probable cause vs. Preponderance of Evidence

Postby Marina » Tue Jun 20, 2006 1:43 pm

MO- Probable cause vs. Preponderance of Evidence

http://springfield.news-leader.com/spec ... 22730.html

"The legislation also raises the standard of proof required to list a suspected individual on the state child abuse and neglect central registry.

The old standard required "probable cause" to believe the individual committed child abuse or neglect. The new threshold is "a preponderance of evidence." "

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

News 6/22/06 - Arizona -- Legis rejects bill to change CPS

Postby Marina » Thu Jun 22, 2006 2:53 pm

Arizona -- Legislature rejects bill to change CPS

http://www.azcentral.com/news/articles/0622cps0622.html

"Lawmakers voted down a controversial bill Wednesday regarding Child Protective Services, citing concerns that the bill would be vetoed by Gov. Janet Napolitano.

The measure would have called on Child Protective Services to show "clear and convincing" evidence of abuse or neglect before keeping a child in state custody.

It also would have required that CPS prove abuse or neglect "beyond a reasonable doubt" before permanent termination of parental rights. And it would have required caseworkers to make all "reasonable" efforts to contact parents before removing a child from a home."


posting under Arizona
and news

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

VA social worker training - neglect standards

Postby Marina » Fri Jun 23, 2006 7:49 am

VA social worker training - neglect standards

http://www.vcu.edu/vissta/training/va_t ... on1_2.html

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Tue Jun 27, 2006 8:42 am

The Role of Educators in Preventing and Responding to Child Abuse and Neglect
Cynthia Crosson-Tower2003U.S.
Department of Health and Human ServicesAdministration for Children and Families
Administration on Children, Youth and FamiliesChildren’s BureauOffice on Child Abuse and Neglect


http://216.109.125.130/search/cache?p=m ... 1&.intl=us

PDF File

3. RECOGNIZING CHILD ABUSE AND NEGLECT ......................................................13
Physical Abuse....................................................................................................................14
Neglect ..............................................................................................................................16
Emotional Maltreatment ....................................................................................................18
Sexual Abuse ......................................................................................................................19
General Indicators of Abuse and Neglect............................................................................22
Conversations with Families and Children ........................................................................24
Child Abuse within the School ..........................................................................................27

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Evidence - agency, juvenile court or criminal

Postby Marina » Wed Jun 28, 2006 6:58 am

Appeals: Courts vs. agency

Your Client Has Been Indicated For Child Abuse - Now What
By Judy L. Hogan


http://www.dcba.org/brief/decissue/2000/art51200.htm

"So, how do you "defend" a client who has been "indicated" by the Department of Child and Family Services ("DCFS") for child abuse or neglect? First and foremost, distinguish between DCFS "indicating" your client for abuse or neglect and the state’s attorney’s office filing a petition in juvenile court or pursuing criminal charges against your client. These are three separate processes with three separate outcomes, all requiring different burdens of proof and all applying different laws."

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Rules of evidence -- psychological evaluation & treatmen

Postby Marina » Fri Jun 30, 2006 8:55 am

Rules of evidence -- psychological evaluation & treatment

WHEN PROFESSIONALS GO TO COURT: PREPARING TO TESTIFY
Kathleen Coulborn Faller

http://66.218.69.11/search/cache?p=cour ... 1&.intl=us


B. The Rules of Evidence

Professionals who will testify need to know something about the rules of evidence and how they impact on
admissibility of certain kinds of evidence at various stages of the court process. Specifically, they should be
aware of what hearsay is and what exceptions to the hearsay rule apply in the court proceedings in which they
testify.
Anything the professional has directly ascertained with any of his/her senses, can be testified to in
court. That is anything the professional has seen, heard, smelled, tasted, or felt. Hearsay is any secondhand
information or an out of court statement offered “to prove the truth of the matter asserted"6
. Nevertheless,
even hearsay may be admissible if it is offered for some other purpose, for example, as the basis for forming
an expert opinion. The child's statements to professionals about maltreatment and observations of children's
behaviors made by caretakers and reported to professionals are all hearsay, but may be admissible because
they are used to form an expert opinion.
Moreover, there are exceptions to the hearsay rule that may apply. The following exceptions are
useful in child welfare cases. Certain conditions, not listed here, apply to the use of each exception.
1. The excited utterance exception
This exception would allow testimony by an adult about a child’s spontaneous disclosure of maltreatment
soon after the fact and when the child was still in an excited state. Although the child’s excited utterances
may be made to professionals, they are more likely to be made to caretakers, for instance to mothers.
2. Statements made in the course of medical diagnosis and treatment
Information elicited by a medical professional from someone he/she is treating is admissible in court. This
exception is made because it is assumed that what a patient tells his/her doctor is inherently truthful. In
some jurisdictions, this exception has been applied to professionals other than doctors.
3. The tender years exception
This exception allows an adult witness to testify to a statement made by a young child if the judge decides it
is appropriate for the adult to provide this testimony.
4. Business records
This exception allows for the admission of case records and reports, provided proof is offered that they are
regularly and systematically kept. This exception can be used to enter into evidence therapists’ notes or
reports based upon mental health evaluations.
5. Reliable statement exception
A statement that the judge views as inherently reliable. This exception can be characterized as the exception
of last resort, relied upon by the judge, to allow important evidence when other exceptions do not apply.
As alluded to earlier, an expert witness, who is allowed to provide opinion testimony, can base
her/his opinion on hearsay. The expert can often recount the hearsay that is the basis of her/his opinion, but
this account does not imply or prove that the hearsay is true.
Hearsay exceptions vary from state to state. Therefore, professionals must be familiar with those
which apply in their states. Further, hearsay rules, that is the exclusion of hearsay, are more rigorously
adhered to at the trial stage of a court proceeding and hearsay rules may be relaxed at other stages. Thus, a
physician's affidavit might be used instead of her/his testimony in a preliminary hearing in a protection case.
Similarly, the opinions of many professionals might be incorporated in a pre-sentence investigation report in
6Federal Rule of Evidence 801(c).
Testifying--5
a criminal case, thus avoiding protracted testimony at disposition. Finally, the rules of evidence are more
stringently applied in criminal cases than in civil litigation.
These are general guidelines regarding hearsay and its exceptions. However, they can only help the
witness anticipate that some of what they would like to say may not be allowed. Often the witness will not
know what will be admissible until she/he is on the stand, when the attorneys raise objections to certain
testimony, and the judge rules what testimony is admissible.
C. PROFESSIONALS AS WITNESSES IN CHILD WELFARE CASES
Mental health and other professionals often struggle with what level of responsibility they should feel in the
court process. At one extreme, professionals may feel they have major responsibility for the court
proceedings, that is for making sure that all the appropriate witnesses are called and the court makes the right
decision. At the other extreme, professionals may feel their only role is to answer questions when they come
to court. Arguably, neither of these positions represents best practice Witnesses are not responsible for the
entire case or court process, but they do have a responsibility to do the best job they can with their part of the
case, their testimony.
The key to quality testimony and psychic survival in court is thorough preparation. Professionals
need to know the facts of the case; decide upon their opinions about the facts and the case; decide the
essential points of their testimony; and anticipate the questions they will be asked on cross examination.
Professionals should expect to spend two to three hours of preparation for every hour on the stand. Each of
the topics just mentioned will be reviewed.
1. The Facts of the Case
Most child welfare cases have a history. It is important to memorize the names, ages, and grades of the
children; when adults met, were married, and divorced; what the specific allegations of parental misconduct
and maltreatment are and the context of their occurrence; and the particulars of other important events in the
case. Professionals should also appreciate the gaps in their knowledge about the case.
This kind of preparation will enable witnesses to provide testimony that is informed and precise. It
will protect the professional from having to rummage through the case record looking for information, a
practice which may result in the perception the witness lacks full command of the case. In addition, careful
review of the case will help the professional avoid making errors or being tripped up by an attorney with
unanticipated questions that call upon factual knowledge.
2. Professional Opinion
There is one major difference between a material witness and an expert witness: the expert may give opinion
testimony in a substantive area (e.g. child welfare). A person becomes an expert by virtue of her/his
education or experience; however, it is much easier to be qualified as an expert with an advanced degree.
The judge decides whether the witness qualifies as an expert.
Professionals testifying as expert witnesses in situations of possible child maltreatment should have
formed an opinion or opinions about the case. Opinions may relate to a number of issues, and appropriate
issues will depend upon the individual’s profession. The most common issues for child welfare cases are
whether the child has been maltreated and future risk for child maltreatment. Other issues about which
professionals might have opinions are where the child should be placed, what sort of treatment is needed for
parents or children, and what kind of visits with the parents are indicated.
The issue of partisanship can be a very troubling one for mental health and other witnesses,
especially because the courtroom is so adversarial. It is important for professionals to appreciate that the
entirety of their opinions usually will not completely support the positions of any of the attorneys involved.
For example, in a child protection case, an attorney representing the child protection agency may want a
mental health professional to only talk about the parent s’ negative characteristics. A competent mental
health professional likely will see both positives and negatives in parents, even if the professional decides the
parents are abusive.
A useful position for mental health witnesses is to recognize that they are partisan, but to their
opinions and consequent recommendations about the case, not toward one side or the other.
Moreover, since these opinions and recommendations will take into account, for example positive
and negative aspects of the parents, there is no reason for mental health witnesses not to share these
observations with the court. In addition, presenting a balanced picture of family members will indicate lack
of bias and enhance the mental health professional’s credibility.
Testifying--6
Professionals must not only be prepared to give opinions, but to explain the basis for their opinions.
Professionals must go beyond "because I said so". Generally, the basis of an opinion includes factual
material about the case and a methodology for analyzing the material. It is important to provide a rationale
for the methodology employed and to be able to cite any relevant research.
3. Essential Points to Be Communicated to the Court
People's lives and behavior are very complex. The courtroom is not well suited to communicating these
complexities. A professional’s discipline and its subtleties may be unknown to the factfinder, whether a
judge or a jury, and the factfinder may find it difficult to absorb all the information put forth at a trial.
Therefore, witnesses, particularly expert witnesses, should decide beforehand the essential points
they want to communicate to the court (and eliminate less important ones). Sometimes a written list is
useful. Usually there will be one attorney whose position is more congruent with the professional’s or who
has called the professional to testify. The witness should let the attorney know what questions to ask to
communicate these essential points. However, it is also a good strategy while testifying, to look for
opportunities to make these points on both direct exam and cross examination.
4. Anticipate Cross-examination
Because the courtroom is adversarial, witnesses should expect to be cross-examined about their opinions
and recommendations. Moreover, in virtually every case, the professional’s opinions and/or work on the
case will be objectionable to one party or the other and have some vulnerabilities. Witnesses should think
about these issues ahead of time and decide how they will respond to questions about them. They need not
to be defensive, but rather honestly concede any differences of opinion or vulnerabilities.
It is useful to remember, in most cases, the attorney’s goal for cross examination is to elicit
material supportive of his/her client. If the professional’s opinion reflects badly upon the attorney's client,
he/she will use cross-examination to try to discredit the professional and/or his/her testimony and/or as an
opportunity to elicit or reinforce testimony that is supportive of his/her client.
The challenges experienced during cross are of two types, those that attack the professional and
those that attack the testimony. Within these two categories are subcategories. Challenges aimed at the
professional as an individual will relate to credentials, possible personal biases, and sometimes personal life.
For example, common queries made of mental health professionals are, in how many cases did you confirm
and disconfirm child abuse, and how many times have you testified on behalf of persons accused of harming
their children versus how many times for the state or child protective services.
Challenges to the professional’s testimony are likely to include the following: inadequacies in the
fact-finding (e.g. the professional did not interview the father), facts the professional did not know, facts not
considered in forming an opinion, and misinterpretation of the data. In addition, cross-examination may
involve the lawyer challenging procedures or conclusions by reference to the literature in the field. This is
called cross examination by “learned treatise”. Th lawyer may begin by asking the witness if he/she is
familiar with a particular work and whether the author is respected in the field. Then a passage is cited to
support an assertion that the witness has erred in some way.
Before going to court, the professional should think through the case carefully considering possible
challenges and responses. It is also helpful to remember, when on the witness stand, that it is not the attorney
asking questions who needs to be persuaded. It is the judge or jury. Witnesses should not let their desire to
win in the “duel” with the lawyer make them overstate their opinions or distort the facts of the case. Finally,
when being vigorously cross-examined, mental health and other professionals should remember “don’t take
it personally”.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Mental health guidelines for neglect - HHS

Postby Marina » Fri Jun 30, 2006 10:04 am

Mental health guidelines for neglect - HHS

The Role of Mental Health Professionalsin the Prevention and Treatment ofChild Abuse and NeglectMarilyn Strachan PetersonAnthony J. Urquiza1993U.S. Department of Health and Human ServicesAdministration for Children and FamiliesAdministration on Children, Youth and FamiliesNational Center on Child Abuse and NeglectThis manual was developed and produced by The Circle, Inc., McLean, VA,
under Contract No. HHS-105-88-1702.

http://216.109.125.130/search/cache?p=m ... 1&.intl=us

They list the same guidelines given above, but here are the guidelines for expert witness testimony.

EXPERT WITNESS
Mental health professionals may be called to render an opinion or testify as an expert witness in Juvenile,
Family, or Criminal Court.
The purpose of the Juvenile or Family Court adjudication hearing is to
determine whether the child needs protection through court-ordered supervision of the family
or whether the child must be removed from the home for a period of time to establish conditions for parental action for
family reunification.
The mental health professional may be asked to testify either to provide support for social service agency recommendations in the case or,
if the professional has been working with the parent, support the parent’s objectives.
This is usually not a jury trial but a hearing conducted by a judge.

Mental health professionals are also called to serve as expert witnesses in criminal trials for the prosecution or the defense,
if felony offenses are charged.

Expert witnesses have the following responsibilities:
?to provide objective testimony whether one is testifying for the prosecution or the defense;
?to be a scholar in the field or related fields,
and be familiar with or have contributed to the literature in that field;
?to be an active or recently active investigator in the field, if testifying on research matters,
or be an active or recently active clinician in the field, if testifying on clinical matters;
?to consider the role of expert witness as a minimal part of professional activity
and not as a profession (in other words, the main activities of an expert witness should be those of scholar,
clinician, teacher, or investigator in the field of expertise);
?to be aware of the legal and ethical impact of the testimony,
and the importance and potential consequences of the testimony to the people involved in the case;
?to be aware of the basic elements of the law and the legal procedures with which the expert will be involved;
?to understand that it is the expert’s job to provide information and/or render an opinion,
not to win or lose the case,
and, therefore, avoid becoming consumed with the adversarial
atmosphere of the legal process; and
?to obtain all the facts from the attorneys and clients(s) to avoid being surprised
by damaging information later in the legal process.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Jul 01, 2006 2:34 pm

HHS Proving Child Maltreatment in Court

Working With the Courts in Child Protection
Jane Nusbaum FellerwithHoward A. DavidsonMark HardinRobert M. Horowitz
1992U.S. Department of Health and Human ServicesAdministration for Children and FamiliesAdministration on Children, Youth and FamiliesNational Center on Child Abuse and Neglect
This manual was developed and produced by The Circle, Inc., McLean, VA, under
Contract No. HHS-105-88-1702.

http://216.109.125.130/search/cache?p=t ... 1&.intl=us

PROVING CHILD MALTREATMENT IN COURT

35The Process of Proving Maltreatment
35The Rules of Evidence
35Why They Exist
35How Evidentiary Rules Affect the Caseworker
35Types of Evidence
35Relevant and Material Evidence
37The Hearsay Rule
37Admissions of a Party
37Excited Utterances38Records
38What Records Are Admissible?
38Getting Records Into Evidence
39Statements Made for the Purpose of Diagnosis or Treatment
39The Residual Exception
39Special Statutory Exceptions for Child Sexual/Physical Abuse Victims
40Privileged Communications
40Opinion Evidence
41Expert Testimony
41Scope of Permissible Expert Testimony
42Character Evidence
42Prior Acts Evidence
43Stipulations
43Rules of Evidence and the Nonlegal Professional
43How Much Evidence Is Required?
43TESTIFYING IN COURT
45Courtroom Dress and Demeanor
45Direct, Cross, and Rebuttal Examination
45Guidelines for Testifying in Court
48Professionals as Witnesses in Sexual Abuse Cases
49Know the Facts of the Case49Have an Opinion
50The Essential Points of the Testimony
51The Weaknesses of the Position and Cross-examination
51Objections by Attorneys and the Judge’s Response
51THE CHILD AS A WITNESS
53Competency
53Judicial Authority To Make a Child Witness More Comfortable in the Courtroom
53Sequestration of Witnesses
54Special Legislative Provisions for the Protection of Child Witnesses
54Constitutional Challenges to Special Treatment for Child Witnesses
55Leading Questions, Anatomical Dolls, and Other Aids to Securing Child Testimony
56Children as Witnesses in Sexual Abuse Cases
56Preparing the Child To Testify
56The Setting
56The Court Process
57The Child’s Recollection
57Additional Suggestions for Preparing Children to Testify
57The Impact of the Federal Children’s Justice Act and the Victims of Child Abuse Act

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Jul 02, 2006 9:57 am

Action for Child Protection

This Months Article...

Overcoming Decision-Making Bias Shortcuts


http://66.218.69.11/search/cache?p=acti ... 1&.intl=us

What does a shortcut in decision-making look like?

The Confirmation Bias – This is the tendency to seek information that supports one’s decision or beliefs while ignoring disconfirming evidence...

The Supporting Evidence Bias
– A Caseworker wants to confirm what he or she already suspects and to look for facts that support it. This bias strongly influences the way one listens, paying to much attention to supporting information and too little to conflicting evidence

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Jul 02, 2006 10:01 am

Action for Child Protection

monthly article for February 2005

Safety and the Legal Process Part 2:
The Adjudicatory Hearing



http://66.218.69.11/search/cache?p=acti ... 1&.intl=us


The most significant testimony that can be offered at the adjudicatory hearing is evidence that establishes that Jose is unsafe. To be effective, CPS must transmit information about Jose’s safety into legally acceptable evidence. The challenge is to present evidence in such a manner to convince a judge who is the sole decision maker. Depending on the state, either a preponderance of evidence or clear and convincing evidence must exist in order to meet the burden of proof that Jose is an abused child and is at threat of serious harm – unsafe. CPS must be concerned with both the amount of evidence (e.g., preponderance) and the quality of evidence (e.g., credibility and persuasiveness) that support the presence of threats of serious harm to Jose.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Jul 02, 2006 10:04 am

Action for Child Protection

monthly article for August 2003

Violence
©2003 Action for Child Protection, Inc.



http://216.109.125.130/search/cache?p=% ... 1&.intl=us

During the course of safety intervention violence is generally identified as it is occurring or through information collection and analysis that gives evidence to its presence in family life. Once the safety threat is identified it must be analyzed to fully understand the manifestation of the violence with respect to progression, frequency, influences, and so forth. Safety intervention proceeds to establish safety plans that match up with and control the violence.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Jul 02, 2006 8:01 pm

**FINAL**

In the Matter of: JOANIE STUMBO, STEVEN STUMBO, SCOTT STUMBO, UNKNOWN STUMBO.

No. COA00-408



(Filed 15 May 2001)


http://216.109.125.130/search/cache?p=e ... 1&.intl=us

The trial court correctly excluded evidence of whether the underlying incident constituted child neglect or abuse from a hearing to determine whether respondents obstructed or interfered with the investigation under N.C.G.S. § 7B-303.

- - - - - - - - --

If at the hearing on the petition the court finds by clear, cogent, and convincing evidence that the respondent, without lawful excuse, has obstructed or interfered with an investigation required by G.S. 7B-302, the court may order the respondent to cease such obstruction or interference.

- - - - - - - -

The evidence presented at the 28 September 1999 hearing tended to show the following facts. On 9 September 1999, Tasha Lowery, a child protective services investigator for DSS, received a report that a naked, two-year old child had been seen unsupervised in the driveway of a house in Kings Mountain.

- - - - - - - - - -

The trial court was correct in its interpretation of the purpose of such a hearing, and did not err in excluding the evidence in question.

- - - - - - - - - - -

In other words, the Director must be required to show by clear and convincing evidence there are reasonable grounds
- - - - - - - - - - - -

Because of the substantial governmental interest in protecting children and the need to act quickly, as well as the additional time likely required to gather evidence in support of probable cause, it would be ill advised to utilize the probable cause standard.
- - - - - - - - - - - -

This case must be remanded for a new hearing, at which time DSS must be given the opportunity to present new evidence.

Marina
Moderator
Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

evidentiary standard

Postby Marina » Thu Oct 19, 2006 5:02 pm

http://supct.law.cornell.edu/supct/html ... 45_ZO.html

Santosky v. Kramer

Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.


Return to “Research Resources”

Who is online

Users browsing this forum: No registered users and 2 guests