Trial Skills for Parent AttorneysMichelle Overby-Henn. Co. Public Defender

o Brief overview of M.N. Rules/Statutes related to C.H.I.P.S. and Permanency Trials

o NOT intended to be an exhaustive review of the law on the topic

o Presumption is many of you are already familiar with the law

o Provide some options for how to plan/prepare for Trial and each of it’s stages

THE LAWStatutes/Rules/Case Law

TRIAL generally:

Occur without a Jury 260C.163 sub 1(a)

Are conducted in an Informal manner

Court considers only evidence which is admissible in a civil trial

(except see below)

Certain hearsay statements are ADMISSIBLE if notice of intent to offer AND court

finds “sufficient indicia of reliability”

(*includes video, audio or other recording)

260C.165

allegations of petition must be proven by clear and convincing evidence (* ICWA beyond

a reasonable doubt)

260C.163 sub 1(a)

R 39.04 sub 1/2

“Clear and convincing” means exactly what is suggested by the ordinary meaning

of the terms making up the phrase. The burden of clear and convincing evidence is

less than that required by the “beyond a reasonable doubt” standard in criminal

matters and is met when the truth of the fact to be proven is “highly probable.” In

order to prove a claim by clear and convincing evidence, a party's evidence should

be unequivocal, intrinsically probable and credible, and free from frailties

In re Welfare of Children of S.W.N.,

2014 WL 4958034 (Minn. App. 2014).

TIMING:

C.H.I.P.S-60 days from E.P.C hearing R 39.02 sub 1(a)

Permanency-depends on the type of petition being filed

TLC petition if child under 8, 30 days from filing

TPR/Other Perm petition, 60 days from admit/deny or 90 days from filing

R 39.02 sub 1 (b)

R 39.02 sub 1(b)/(c)

260C.509

PROCEDURE:

Petitioner presents evidence first and gets last word R 39.02 sub 2(b)

CHILD IN NEED OF PROTECTION/SERVICES:

17 enumerated basis to find a child in need of protection or services 260C.007 sub 6

(1)-(17)

To find CHIPS court must find existence of one of the enumerated child-protection

grounds and that the child needs protection or services as a result (court found

evidence established that services were beneficial, but not necessary)

BUT does not mandate proof of current abuse or neglect (unless the alleged child-

protection ground requires such proof)

In re Welfare of Child of S.S.W.,

767 N.W.2d 723,

(Minn.App.2009),

VOLUNTARY TERMINATION:

With consent of parent and good cause court may voluntarily terminate a parents

rights (*except if parent is a minor/incompetent, unless GAL also joins in written

consent per 260C.307 sub 4)

260C.301(a)

R 42.08 sub 2

The case law makes it clear that circumstances that justify involuntary termination do

not necessarily justify voluntary termination.

In re Welfare of J.D.N., 504

N.W.2d 54, (Minn.App.1993)

Court has found that, because in many cases the involuntary petition will not establish

good cause for a voluntary termination, they cannot apply a blanket rule that an

admission to an involuntary termination petition converts the petition into a

voluntary termination. “Good cause” under the voluntary termination statute “exists

under a variety of circumstances.”

In re Welfare of D.D.G., 558

N.W.2d 481 (Minn.1997)

INVOLUNTARY TERMINATION: 9 enumerated conditions which permit involuntary termination 260C.301 (b)

7 enumerated conditions which permit an expedited termination 260.012 sub (a)

Termination of parental rights/adoption is the PREFERRED permanency

option

260C.513(a)

Involuntary termination requires clear and convincing evidence that at

least one statutory ground for termination exists and the termination is

in the child's best interests

In re Welfare of Children of R.W.,

678 N.W.2d 49, (Minn.2004)

Paramount consideration is best interests of the child

260C.001 sub 2(a)/3

260C.301 sub 7

260.012

260C.511

Child's best interests may preclude terminating parental rights even when

statutory basis for termination exists

In re Tanghe, App.2003, 672 N.W.2d

623

“In analyzing the best interests of the child, the court must balance three

factors: (1) the child's interest in preserving the parent-child relationship;

(2) the parent's interest in preserving the parent-child relationship; and

(3) any competing interest of the child.”

In re Welfare of R.T.B., 492 N.W.2d

1, 4 (Minn.App.1992)

Whether to terminate parental rights “is always discretionary with the

juvenile court.”

In re Welfare of Child of R.D.L., 853

N.W.2d 127, 137(Minn. Sept. 10,

2014)

The court must make its decision based on evidence concerning the

“conditions that exist at the time of termination”.

In re Welfare of P.R.L., 622 N.W.2d

538, 543 (Minn.2001)

In a termination case, the court “relies not primarily on past history, but

to a great extent upon the projected permanency of the parent's inability

to care for his or her child.”

In re Welfare of Solomon, 291

N.W.2d at 368 (Minn. 1980)

TRANSFER OF LEGAL CUSTODY:

Court may transfer permanent legal/physical custody to a relative if it is in

the child’s best interests

260C.515 sub 4

Either the Dept. or any other party to the perm proceedings may file the

petition

260C.515 sub 4 (6)

Before even reaching the question of whether a transfer is in the child’s

best interests-as a threshold matter, the trial court must determine

whether the conditions that led to the out-of-home placement have been

corrected so that the child can return home

Matter of Welfare of A.R.G.-B.,

551 N.W.2d 256

(Minn.App.,1996)

OTHER PERMANENCY DISPOSITIONS:

Guardianship to the Commissioner (Consent to adopt) if there is an identified

prospective adoptive parent agreed to by the Dept. and the parent gives voluntary

consent in writing

260C.513 sub 3

Permanent custody to the agency (LTFC) if

-compelling reasons for this perm option

-child is 12 or older (or the sibling of a child who is 12 with which they have a

significant relationship and are in the same foster home)

-Department’s reasonable efforts to find alternative permanent placement for

the child have failed

-parent will to continue to have visitation/contact

-in best interests of the child(ren)

260C.513 sub 5

Temporary legal custody to the agency (FCSPT) if

-compelling reasons for this perm option

-the sole basis for the CHIPS adjudication is the child’s behavior

-award of custody is for no longer than one year

-in best interests of the child(ren)

260C.513 sub 6

TRIAL RESULTS:

Court must issue a decision within 15 days after conclusion of Trial (may extend

another 15)

R39.05 sub 1

At the conclusion of a C.H.I.P.S. Trial the court must;

-dismiss the petition

-enter or withhold adjudication pursuant to Rule 41

R39.05 sub 2

At the conclusion of a PERMANENCY Trial the court must either;

-order the child returned to the care of the parent/guardian and dismiss the

petition

-find that the child is in need of protection or services

-order one of the other permanency dispositions noted in 260C.513/260C.301

260C.509

R 39.05 sub 3(a)

CASE ANALYSISThe idea of a PERSUASIVE STORY

• The party who tells the most persuasive story generally wins.

• In the Child Protection context this is the “story of the family”.

• A Persuasive story establishes an affirmative case if it;• Is told about people who have reasons for the way they act• It accounts for or explains the known or undeniable facts• It is told by credible witnesses• It is Supported by details• It accords with common sense ( contains no implausible elements)• It is organized in a way that makes each succeeding fact more increasingly

likely

• Therefore in order to prepare for trial, the Lawyer must conceive of and structure a true story that is most likely to be believed by the trier of the fact.

• There is an erroneous assumption that the art of thematic storytelling is less appropriate or useful in child welfare cases as most occur before a Judge.

• New research reveals that Judges process information at trial more alike than unlike jurors, a study of Judges found that-• 78% wanted lawyers to simplify technical issues of fact/law• 76% wanted lawyers to formulate evidence into more cohesive stories

CASE THEORY STORY OF THE CASECASE THEME

CASE THEORY

• Is an adaptation of the facts to the legal issues in the case

• It is LOGICAL, based on a foundation of undisputed/provable facts all of which lead in a single direction

• It speaks to the ELEMENTS of your case, directed to prove every legal element that is necessary to justify deciding in your client’s favor

• It is SIMPLE and makes maximum use of undisputed facts

• It is EASY TO BELIEVE (eliminate implausible elements)

• To develop and express your theory ASK;1. What happened?

2. Why did it happen?3. Why does that mean my client should win?

CASE THEME

• Gives persuasive force to your arguments?

• Appeals to shared values or common motivations?

• Succinctly expressed and repeated throughout trial- Introduced during opening

Reinforced in the facts elicited during direct/cross Driven home during your closing

• A single-theme is more persuasive than an either/or proposition

CASE THEORY STORY OF THE CASECASE THEME

BUILDING A STORY OF THE CASE

The Marsh Family

For the Marsh FamilyCASE THEORYEXAMPLE

• Sharon Marsh is a single parent of an only child, Stan

• Stan is a 7 year old with increasingly difficult behaviors

• Sharon prefers time-outs but when necessary uses spankings for discipline• Sharon has no previous history of physical abuse or neglect• Stan has no history of unusual or unexplainable injuries

• Stan was not permitted to go to the park because he didn’t clean his room

• Stan didn’t react well to being told NO and instead threw a fit

• As a result of the “fit” Stan tripped and fell into the corner of his nightstand on accident

• Stan received a bruise from the fall

For the Marsh FamilyCASE THEMEEXAMPLE

Being a single mother of a behaviorally challenging child is difficult

Accidents happen

USING YOUR STORY OF THE CASE TO PREPARE FOR TRIAL

CLOSING ARGUMENTS

• Good trial prep begins at the end.

• By planning your final argument at the beginning you are able to plan the balance of your case so as to ensure that the record contains every fact you will need to make it.

• Ask yourself these two questions;1. What do I want to say at the end of the case?2. What evidence must I introduce/elicit in order to be

able to say it?

• It is the lawyers job in closing to draw the inferences, make the conclusions, explain/argue the application of the law and the necessary outcome

• Use a proof chart to “plan” where during the Trial you will elicit each of the facts you need to support your theory

• Bookend-don’t forget to repeat your theme

• Even if you don’t plan to give an oral closing, preparing as if you do will ensure you create a solid “plan” for Trial and will give you a helpful outline for proposed findings of fact/law.

DIRECT EXAMINATION

• If a Trial is a story of the case, direct examination constitutes the WORDS of that story.

• The opportunity to present the substance of your case using the six honest words-what, where, when, how, why, who

• Also your opportunity to put forward your client’s version of the DISPUTED facts

• The art of direct is establishing the certainty of facts the other side claims are uncertain/untrue

• To be effective direct must have a central purpose-to establish an aspect of your theory/theme or contribute to the persuasiveness of either

• The content of direct can be greatly enhanced by using; ORGANIZATION-sequencing that provides for logical development, use headlines

(statements by the lawyer directing a witness to a particular topic) FOCUS-to underscore or expand on crucial issues

EXCLUSIONS-eliminate all clutter, unprovables (facts that could successfully be disputed), implausibles (facts that “just won’t fly”) and impeachables (statements open

to contradiction by prior statements).

WITNESS CONSIDERATIONS

• Evaluate any potential witnesses, by asking;1. What does witness contribute to theory?2. What facts can I introduce through this witness?3. Are other witnesses available for the same facts?4. Is witness an effective vehicle for my theme?5. Consider all possible problems/weaknesses;

a. Does the witness have damaging information that is likely to be elicited on cross examination? If yes consider how to minimize impact.

b. How is the witness likely to be impeached? Is there bias/interest? Prior inconsistent statements?

• Must call any witness who is the sole source of a crucial piece of information.• Eliminate witnesses who are cumulative or whose credibility is suspect.• Order witnesses using these principles;

a. Retention-judges tend to best remember evidence heard at beginning and the end of a trial

b. Progression-the need for logical progression or predicate factsc. Impact-maximize dramatic impact of witness (good or bad)

CROSS EXAMINATION

• APPROACH WITH CAUTION “you can’t win your case on cross but you sure can lose it”

• To be useful a cross examination should promise to fulfill at least one of these objectives;1. Repair or Minimize any harm caused to your case during direct exam2. Enhance your case by furthering one of your claims , eliciting positive facts3. Detracting from your opponents case by drawing out detrimental facts4. Impeach a witness

• The length of the cross examination should directly proportional to how many of the above goals can be achieved.

• WITNESS CONTROL IS IMPERATIVE and occurs most frequently as a product of asking confining leading questions based on facts.

• Never ask a Q that you don’t know the answer to. Use an ANSWER/IMPEACHMENT chart.

• It is ill advised to engage in an unfocused generalized attack on a witness-topic selection is crucial and should further one of the above objectives.

• Each point in cross must be made clearly; (a.k.a. the Duck technique*)1. Introduce the topic2. Focus on facts, not conclusions3. Exhaust the factual inquiry4. Stop before asking the conclusion/making the argument5. Move on to the next point

The Duck Technique

1. You live next to a lake, correct?2. You swim in that lake?

3. You float on top of the water?4. You paddle under the water with your feet?

5. You have webbed feet?6. You have feathers?

7. You can fly?8. But you can also walk?

9. Would it be fair to say you often waddle when you walk?10. You have a beak, don’t you?

11. And when you open that beak you quack isn’t that right?

• An example of this type of incremental factual question would be eliciting bias in a case worker.

• The case worker is more likely to argue/disagree with a question that contains opinions or conclusions (for example that he/she didn’t like your client).

• But could be forced to admit obvious facts which you can use to suggest that was the case (complaining to a supervisor, cutting meetings short)