Understanding Juvenile and Family Court
By: Bruce D. Perry, M.D., Ph.D.
The ChildTrauma Academy
Most professionals and caregivers working with maltreated children will eventually have some interaction with the Juvenile and Family Court system. These Courts make major decisions that impact the maltreated child's health and welfare. Indeed, it is likely that a Judge's decisions about placement and services have more impact on the health and welfare of maltreated children than clinicians or caseworkers. It is imperative, therefore, that the professionals and caregivers working with maltreated children and their families understand and participate effectively in Court proceedings.
Being involved in the court process can be stressful and confusing for both adults and children. Quite often, families feel swept up in a whirlwind of new people and strange procedures, in a place where they lack control over important decisions. Even so, many families look forward to their day in court, since court is supposed to provide justice. Once at court, however, families often feel frustrated because they do not understand what is happening or what is being said by the lawyers and judges; the very people in charge of protecting them.
Children's increased participation in the legal system has brought much-needed attention to the differences between child clients and adult clients. The formal surroundings and rules of the court process are intimidating enough for adults, let alone children. Testifying in court, facing the defendant in court, embarrassment and fear about public speaking, and a lack of knowledge about what to expect from the legal system only increases the stress level of an already anxious child. By understanding what happens in court and what is expected of them, children can have an empowering experience in court. Like all experience, familiarity can decrease the anxiety of the unknown. The more children, their caregivers and the interdisciplinary team working with them know about court, the less distressing it will be to participate in court process. A key to this is beginning to understand the structure, process and language of the Juvenile and Family Courts.
Legal Proceedings: Participants and Process
The court process operates according to hundreds of rules. To non-lawyers, not only are these rules confusing, but also the words lawyers use seem like a foreign language. Three such important words to describe some of these rules are competency, capacity and hearsay. Although these words are important in any court proceeding, they have somewhat special applications in the child protection system.
In all courtroom proceedings, there are participants and process. The following outline of the major participants and process are focused on the "in court" experience where the child your are working with (or caring for) may be a witness.
Key Participants
Each court proceeding has key participants. Being aware of the role of the various potential participants can help make a confusing jumble of people into something more structured and comfortable.
The children: In some cases, other children (e.g., siblings, foster-siblings) will be present in the court or in the court waiting areas. If you work with these children or know them, seeing them can be awkward for you, for the child about to testify and for the siblings. They may not know how to respond to you outside the confines of your office or your other role. They may be confused about why their family is hostile to you. They may be angry, hungry, tired and frightened. It is often heartbreaking to be present when children and families re-unite or separate. Different courts handle these circumstances in different fashion. If you are a therapist, counselor, caseworker or other professional working with these children or families you will have to interact in some fashion with the children. Do not ignore them.
The family: Often other siblings, parents, grandparents, uncles, aunts or cousins may be present. As members of the family are often the defendants, they are allowed to be in court in most cases. You will find that during breaks, prior to testimony and on the stand, their presence can be disconcerting. Anticipate an emotionally charged environment. Family courts can be very tense. Try not to let this distract you or the child (if they will be a witness). Sometimes it is best to ask the child's attorney to have a more private place to wait before the child's testimony - this can help minimize tense interactions that may interfere with the child's capacity to concentrate and perform on the stand.
Attorneys: There will always be at least two sides represented by attorneys. In civil trials, such as abuse/neglect cases, the State generally brings a petition alleging that a child has been maltreated. The attorneys representing the State are usually called prosecutors, assistant state's attorneys or assistant attorney generals. In most cases, an attorney will also represent the child's parent(s). The interests of the child in the case will also be represented, although not necessarily by an attorney. Depending on the jurisdiction, the child may be appointed an attorney or a non-attorney GAL or Court Appointed Special Advocate (CASA) worker may represent him. In some jurisdictions, an attorney may also represent the Child Protective Services agency (or an individual caseworker).
The Trier(s) of Fact: In addition to the lawyers, there will also be a trier of fact. In civil abuse/neglect trials, the trier of fact is a judge or magistrate. The judge will determine the outcome of the child's case based on the testimony presented at the hearing or trial. In criminal cases, the trier of fact will be either a judge or a jury. The defendant has a right under the Constitution to a jury trial in felony cases. If the defendant decides to have a jury trial, the jury will be called upon to make the ultimate decision of guilty or not guilty. The judge, however, will still make all of the decisions related to evidence and trial procedure.
Other court personnel: The courtroom can often have lots of other people. Some common participants are the Bailiff, a law enforcement officer charged with assisting the proceedings in specific ways and the Court Reporter, charged with recording the proceedings. Attorneys may have associates, assistants or investigators working with them who, at different times during your testimony, may be present.
Depending upon the age of the child and the specific nature of the testimony, you may want to help the child know who is who. In most cases, however, it is may be sufficient to just tell the child who their attorney is and make it clear who the judge is and how the judge is in control of the court. It is very reassuring to children to understand that there is a powerful person in control in what may appear to be such a chaotic process. Sometimes it can be reassuring for the child to see and understand the role of the Bailiff. Abused children in the presence of their abusers are often very intimidated and fearful. By pointing out that the judge and Bailiff are in control in the court, it can provide some temporary reassurance to the vulnerable, fearful child.
Types of Proceeding
Deposition: A deposition is actually not a courtroom proceeding. A deposition is a way for the opposing attorney to learn about the facts and opinions that a child may provide at the time of trial
In deposition, the child is under oath, the proceedings are recorded by a court reporter and you may be audio- or video-recorded. The statements provided in deposition may be used at the time of trial.
Hearing: There are several types of hearings (see Glossary) in the typical child protective process: the emergency hearing (24 to 48 hours after removal), the initial disposition hearing (typically 14 days after removal) and a status or review hearing (every 3 to 6 months). In hearings, there may not be as much formal testimony as in a trial. Some hearings follow the same process as a trial, others are very quick and less formal (e.g., all parties standing before the Judge).
Trial: There are several types of trials. For most purposes, these can be divided into civil and criminal. The majority of court processes in abuse and neglect cases are handled in civil trials or hearings. In many situations, however, there will be a criminal case may be proceeding simultaneously with the civil abuse and neglect case. Whether or not a criminal case is filed by the State depends on the seriousness of the allegations in the abuse/neglect trial, as well as the State's ability to prove these allegations. The prosecutor or state's attorney for the particular jurisdiction has complete discretion over which cases to prosecute. Criminal trials will have similar players, but there will only be two parties: the State and the defendant. A prosecutor or assistant state's attorney will represent the State. An attorney, who is either in private practice or working for the public defender's office, will usually represent the defendant.
This overview of the participants and processes in court provides a background to consider three of the most important legal concepts important for children in the Juvenile and Family Court systems: competency, capacity and hearsay.
Competency
Competency is a person's ability to participate in the legal process at a given moment in time. In this context, participation means the ability to testify in court. Competency is a fluid concept, meaning that it can change over time. For instance, although a three-year-old child may be considered incompetent to testify today, six months or a year from now, that child might be found competent.
Who determines competency?
Professionals, including social workers, psychologists, psychiatrists, lawyers, and judges, typically determine competency. In court, the judge may ask for opinions about a particular child's competency from a social worker, psychologist, or psychiatrist, but the judge makes the ultimate competency determination.
How does competency fit in the court process?
Child witnesses play a special role in the legal system. In child abuse cases, the child and the offender are frequently the only witnesses to the crime. Therefore, it is often important for children to testify in court about what happened to them. However, many states have laws that presume that children under a certain age, often ten, twelve, or fourteen-years-old, are incompetent. These laws are based on the presumption that young children do not have the ability to participate in court. But, presumptions can be proven false. Usually, these presumptions are proven false by questioning a child and demonstrating that the child is competent to testify. The judge usually conducts what is called a preliminary examination, where he or she, sometimes with the help of a lawyer, questions the child to determine competency.
How is competency proven?
Because of the challenges involved with child witnesses, and the public policy involved in punishing child abusers, many judges try very hard to allow child witnesses to testify. Therefore, several courts have ruled that children of all ages are competent to testify in prosecutions for child abuse and neglect. Nonetheless, most courts still question children to confirm competency. To be considered competent by the court, a child must be able to understand what it means to take an oath. An oath means an agreement to tell the truth. Basically, children must understand: (1) the difference between right and wrong; (2) the difference between telling the truth and telling a lie; and (3) the importance of telling the truth in court. Children must also understand the consequences of not telling the truth, such as punishment by the court. To be competent, children also must have some understanding of why they are in court, and must be able remember the event in question, and share these memories with the court using language appropriate for that child. Judges will often ask children questions that will demonstrate their general intelligence, such as where they live, who lives with them, what grade or type of class they are in, and who their teachers are. A child who knows how to answer all of these questions will likely be considered competent, even if he or she is learning impaired.
What is the difference between competence and credibility?
While competency involves a person's ability to participate in the court process, credibility involves how much value to give that person's testimony. A person who is incompetent will not be allowed to give sworn testimony at trial. However, even a competent person may not be considered credible. For example, a child that knows the difference between a truth and a lie, and that a cartoon character is not real may be found competent. But, if that child's testimony involves lots of hesitation and inconsistencies or conflicting answers in his or her story, that child's testimony may not be considered credible.
Capacity
A dictionary definition of capacity is a person's mental ability to understand the nature and consequences of his or her actions. In court, capacity means that a person is free of all legal disabilities. Legal disabilities are not the same as physical disabilities. Legal disabilities usually involve being under age or being insane. A person must have legal capacity in order to go in front of, or be brought into, court.
Capacity to sue is often confused with standing to sue. Standing to sue means that a person has enough of a legal interest in an event that requires court resolution to allow that person to file suit. To have standing to sue, a person must be wronged or accused of wrongdoing. Therefore, even if a person has standing to sue, they may not have the capacity to sue. For example, a person charged with murder has standing to be in court since he is accused of wrongdoing. However, if that person is found to be criminally insane, he lacks the capacity to be sued.
Do children have the capacity to sue on their own?
No. Even when wronged, children cannot bring a legal action on their own behalf, or defend a legal action brought against them. Children cannot sue on their own because they are considered to be legally disabled. One example of a legal disability is being under the age of eighteen. Therefore, because children, by definition, are under eighteen-years-old, they lack the capacity to sue.
Why do courts consider children to be "disabled"?
Children are protected from the court system because they do not have the knowledge or experience to function in such a complex and adversarial environment. Children are thought to be too immature to understand the implications and consequences of bringing a lawsuit. Also, courts worry that because children may face substantial pressure from their families, this stress may cause children to misidentify or misstate their interests. Overall, courts have stated that because of children's lack of experience, judgment, knowledge, resources, and awareness, they cannot adequately state and protect their legal rights. Therefore, courts have decided that children, on their own, do not have the capacity to bring or defend against a court action.
Without capacity, how do children gain standing?
As a policy, every person that has been wronged, regardless of his or her age or other legal disability, has the right to pursue a remedy. A remedy is a legal solution to correct a wrong. Remedies can be in many forms, such as money or jail time. But, where the wronged person lacks capacity to sue, like a child, courts require that someone else file suit on the person's behalf to make sure that the person's best interests are served. Therefore, even though children do not have standing to sue on their own, they can bring or defend a lawsuit when a legally competent adult represents them. Often, a child's case is brought by a "next friend," typically a parent or other custodian. In abuse and neglect cases, unrepresented children are appointed guardians ad litem, who serve to protect the child's best interests.
What are the other effects of capacity on children's cases?
The decision by the court system that children are under a legal disability has caused a lot of confusion as to what is the proper role of an attorney representing a child. Typically, when an attorney represents an adult client, the client makes most of the important decisions. However, because courts believe that children cannot adequately protect their legal rights, lawyers face confusion about what their role is in representing child clients. Because of this, two different models of representation have evolved over time: the best interests model and the attorney model.
Attorneys who use the best interests model believe that the child is a developing, immature being in need of protection and control. This kind of lawyer tries to determine what is in the child's best interest on his own and then expresses that finding to the court.
Using the attorney model, the child's lawyer views the child as an independent person with the right to make the decisions that will directly involve that child. Therefore, these attorneys believe that the child client should direct the attorney's representation and the attorney should convey to the court only the child's stated desires.
There are many variations and combinations of these two models. It is very important to discuss with an attorney how he or she views his or her role on a child's case before the case begins.
Hearsay
The court process is guided by the rules of evidence. One important evidentiary rule involves hearsay. Hearsay is a statement made by someone outside of court that is repeated by a witness testifying in court. The witness is repeating the statement so that it can be used as evidence in the trial. A statement that is hearsay is not allowed to be evidence in a trial unless it falls into one of several exceptions to the hearsay rule.
Hearsay is one of the most confusing and frustrating legal concepts. Hearsay comes into play in several different situations in court. For instance, quite often, families decide that a child victim of maltreatment should not testify in court because of the stress and trauma to the child. Many of these children have talked about their abuse with other people such as therapists, teachers, or friends. These families think that these other people can tell the court what the child said, without making the child testify himself. Once in court, however, the families hear that the other people cannot testify because it would violate "the hearsay rule." The following paragraphs are meant to explain a little about the hearsay rule. Sometimes, an example makes this tricky concept a little clearer.
Let's imagine that a child, Mary, has been seeing a therapist, Dr. Smith, because lately, Mary has become very violent. Mary has an uncle named John. One day, while Mary and Dr. Smith were having a therapy session, Mary told Dr. Smith that John, "hurts me where I go pee." Dr. Smith reported this statement to the police, who investigated and arrested John. John denies that he ever touched Mary.
The trial against John for sexually abusing Mary has now begun. The judge questions Mary and decides that she is not competent to testify because she does not understand the difference between the truth and a lie. Since Mary cannot testify, the prosecutor calls Dr. Smith as a witness to testify about what Mary said to Dr. Smith that day in therapy. Dr. Smith wants to tell the court that Mary told her that John hurts Mary where she "goes pee."
Remember our definition of hearsay: hearsay is a statement made by someone outside of court that is repeated by a witness testifying in court. The witness is repeating the statement so that it can be used as evidence in the trial. If Dr. Smith repeats Mary's statement in court, it would be considered hearsay because Dr. Smith is repeating to the court something that Mary told her outside of court. The prosecutor wants Dr. Smith to repeat Mary's statement so that Mary's statement can be evidence that John sexually abused Mary. Therefore, if Dr. Smith repeats Mary's statement, it would be hearsay.
Quite often, lawyers do not spot hearsay until after the statement has been repeated in court. Therefore, upon hearing an answer involving hearsay, the lawyer who is not questioning the witness will generally say, "Objection, hearsay." At this point, the lawyer questioning the witness has the opportunity to explain why the answer is not hearsay. There are several different ways for lawyers to argue that even though a statement is hearsay, it should still be allowed as evidence. We will discuss a few of these ways below.
Why are hearsay statements not allowed to be repeated in court?
The hearsay rules have been around since the beginning of the formal legal system. Courts fear hearsay statements for many reasons, the most important being that such statements are not made in the courtroom. Many people believe that a statement made in court is more trustworthy because it is made under oath and subject to cross-examination by the other attorney. Statements made outside of court, and later repeated by someone else in court, could be subject to memory lapses or other inaccuracies.
Additionally, it is possible that the witness may have misinterpreted the statement made by the original speaker. Or, courts worry that the original speaker may have intentionally lied to the person who is now repeating the statement in court. By not questioning the original speaker, it is likely that these errors will never come to light.
When dealing with children's out-of-court statements, courts are confronted with additional concerns. For instance, courts believe that children's memories are of special concern because they may be inaccurate, subject to distortions or fantasies, affected by stress, or suggestible. Additionally, when a child makes an allegation of abuse to another person, and that person testifies about the child's confession in court, courts fear that that person's feelings about the offender may bias his or her recollection of the child's original statement.
How do courts deal with the special problem of hearsay in child maltreatment cases?
In child maltreatment cases, hearsay poses special problems. Often, besides the child and the offender, there are no other witnesses to the crime. Therefore, if the child is found incompetent and unable to testify in court, there would be no oral evidence of the abuse. Similarly, if the stress of testifying is too great on a child, who would testify about what happened to the child? Courts are beginning to recognize these special problems and are developing different strategies to allow for these situations. In general, hearsay rules vary from state to state so it is important to ask your lawyer what to expect in your state.
Almost all courts allow some hearsay statements to be admitted under certain exceptions to the hearsay rules. For instance, hearsay statements made for the purposes of medical diagnosis or treatment are admissible. Therefore, assume that a child is taken to a doctor after complaining that her arm hurts. If the child tells a doctor that her arm hurts because "mommy put a hot iron on my arm," the doctor will be able to repeat this statement in court, even if the child does not testify. Courts think that statements made to a doctor or nurse do not carry the usual hearsay dangers since people are normally truthful when they want to get better.
Another hearsay exception is called "excited utterance." This exception allows out-of-court statements to be admitted if the statement made by the child was spontaneous and made while the child was in shock or full of nervous excitement. However, the more time that goes by between the shocking event and the statement, the less likely a court will consider it to be an excited utterance. This exception has been frustrating in child maltreatment cases because many children wait for a substantial period of time before reporting an abusive situation. Some courts are beginning to understand this, and, therefore, courts are relaxing the time requirement for "excited utterances."
There are more and more states that understand the problems of hearsay in child maltreatment cases. As a result, several states are not following the hearsay rules in cases involving physical and/or sexual abuse. Courts in these states allow a witness to testify about out-of-court statements made by a child under twelve years of age to the witness concerning physical and/or sexual abuse. This court-made exception is used when a child may not be competent to testify in court, or when the stress of testifying is too great for the child. In these states, the above example involving Mary, John, and Dr. Smith would not be a problem. Since Mary's statement to Dr. Smith involved sexual abuse, Dr. Smith could repeat Mary's statement in court without violating the hearsay rules.
There are still several states that believe that the hearsay rules should be the same for children as they are for adults. In these states, hearsay is only allowed under the general exceptions, such as statements made for the purpose of medical diagnosis or treatment and excited utterances. No special exceptions are made for physical or sexual abuse cases. As a result, the child often must testify and be cross-examined in court. Courts in these states, however, sometimes make special accommodations for the child witness to try to alleviate the stress of testifying. These accommodations include allowing videotaped or closed-circuit testimony, letting the child testify outside of the witness box, and permitting the child to take several breaks while testifying.
Helping a Child Prepare for Testimony
Parents and caregivers make all the difference in the lives of maltreated children. This section suggests a few different ways to help children get ready for their day in court.
Prepare children for court: Court is incredibly overwhelming for children. Quite often, they do not understand who all the different people are, what the purpose of a trial is, or why they have to tell their very personal story in front of so many strangers. Preparing children for court helps to reduce some of the stress involved. Many counties offer a program called Kid's Court. Kid's Court is a one-day program that prepares a group of children for their days in court. Kid's Court offers children the opportunity to see a courtroom before the day they are called to testify. Group leaders explain the different roles of the judges and attorneys and practice stress-reducing techniques with the children. Overall, Kid's Court helps children become familiar with what they will see and hear at court, but it does not coach children about how to testify for their specific cases. In fact, children's specific cases are not discussed at Kid's Court.
Families whose communities do not offer a Kid's Court program can still prepare children for court on their own. Ask your social worker to go with you and your child to a courtroom and explain the roles of the judges and lawyers. Show your child where the judge sits, where the lawyers sit, where you sit, and where a witness sits. Tell children that they are being called to testify as a witness and they will be questioned about events they have seen or heard. Remind children, in language they can understand, about their responsibility to testify truthfully. Most of all, make sure that children understand that the adults in court, and not the children, are responsible for making decisions about the outcome of the case.
Also, keep in mind that rules about competency, capacity, and hearsay, as well as other legal rules, vary from state to state. Speak to your attorney, or your child's attorney, to learn the rules of your court. Above all, remember that all of these legal rules are important, but not impossible to learn and understand.
What not to do: Preparing your child for court does not mean coaching your child's testimony. When a child's testimony sounds too rehearsed, or is in language that is too developed for that child, the court is likely to find the child incompetent to testify. Therefore, you should prepare your child for the mechanics of court, but do not rehearse what the child should say in court. Most importantly, make sure that children understand that their testimony is only one factor that the court will consider, and there are many factors out of their control. Children should not believe that their testimony determines the outcome of the case.
The Testimony
The following steps are based upon trial testimony. Elements of this procedure are present in almost all court procedures.
Elements of Courtroom Procedure
Swearing in: Most typically, the child will be waiting outside the courtroom. The child's name will be called by the bailiff and they will enter the courtroom, proceed to the witness stand and be asked to take an oath, to tell the truth, the whole truth and nothing but the truth.
Direct Examination: There are several stages to the process of questioning a witness. The first is direct examination. The attorney who has called the child as a witness will conduct the direct examination. Direct examination usually involves more open-ended questions. Typically the examining attorney will ask clarifying questions to establish the child's history and narrative about key events in the case. Depending upon the nature of the proceeding, the age of the child and the specific
Cross-Examination: This is the opportunity for the opposing attorney to zealously represent his or her client. For the child, this means that this attorney will try to make his or her testimony less credible. They have lots of ways to do this. The opposing attorney will ask close-ended questions designed to elicit a yes or no response. Attempts to give more explanatory response will not be permitted. One primary objective of these questions is to bring doubt to the minds of the judge or jury about the child's credibility or memory.
Re-direct: If the attorney who presented the witness feels that some of the answers on cross-examination require clarification, they may conduct a redirect examination. This examination is limited to those issues raised on cross-examination. Any issue the witness did not get a chance to explain on cross-examination can be cleared up or answered more fully on redirect. Finally, any issues raised on redirect may be addressed by recross-examination of the witness. The back and forth, however is usually much shorter and limited in scope.
The actual testimony in trial or deposition has several stages. Courtroom procedure can vary from hearing to hearing.
After the Testimony:
When the child has finished testifying, there will be several key areas to focus on. The first is that the child may have major changes in their emotional and behavioral functioning. During testimony, children are often asked to recall and relive very traumatic experiences. This can result in classic post-traumatic symptoms. These will typically involve regressed behaviors, such as irritability, anger, sadness, sleep problems and re-enactment play. Be prepared for these, hopefully, transient changes in the child's behavior.
The second main issue is that the outcome of the court proceeding may change the child's treatment, disposition and visitation schedules. With these changes, the caregivers and interdisciplinary team must anticipate the impact on the child and make the best service plan possible. The outcomes from court proceedings often result in a plan for reunification or permanency that must be handled in a professional, sensitive and thoughtful way. The frustrations and anger of the team in cases of unanticipated or undesirable court decisions must not further poison the child's life. By working within the decision of the court, the team and caregivers will be helping the child to the best of their ability. This is often the most difficult task of the caring foster parent or the invested interdisciplinary team - preparing a child for a transition to a risky or uncertain placement. Yet without thoughtful, hopeful transitioning, the child's future will be even bleaker.