Did You Miss the Judge's Panel in September? The Video is Now Available!

For those of you who were unable to join us for the Judge's Panel on September 19, 2014, you can now watch a video of the event.

Visit our online training homepage HERE.  The usual cost is $15.00 for 1 hour of CLE, but use the code JUDGEPANEL to get it for free until February 28, 2015.

Don't forget to enter the codes that pop up during the presentation to get your certificate and your CLE credit.

New York Court Grants New Trial in Case of Baby Sitter Accused of Shaken Baby Syndrome

On December 16, 2014, a New York court overturned a murder conviction for Shaken Baby Syndrome.

While in the care of a day care provider a two and a half year old died after falling from a bench.  The day care provider was convicted of murder under the theory of Shaken Baby Syndrome.  A post-conviction motion asked the court for a new trial under the theory that new scientific research regarding the characteristics of Shaken Baby Syndrome undermined the reliability of the verdict.  The court agreed with the defense that a child can, in fact, die from a "short fall" and ordered a new trial based on the newly discovered evidence (i.e. advances in scientific research).

You can find a copy of the opinion HERE.

NJ Justices say Methadone Treatment While Pregnant Not Child Abuse

On December 22, 2014, the New Jersey Supreme Court ruled that going through a methadone treatment program while pregnant, even when the newborn suffers from withdrawal symptoms, does not constitute child abuse.

The unanimous court overruled two lower court decisions that looked only at the harm to the child without considering whether the mother's actions were reasonable.  The court wrote: "We hold that, absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed health care professional to whom she has made full disclosure," 

You can find a full copy of the opinion HERE.

Book Review: Handbook on Questioning Children

Handbook on Questioning Children 
By Anne Graffam Walker, Ph.D.

The Parental Defense Alliance has added to its library a new book, The Handbook on Questioning Children: A Linguistic Perspective (3rd Edition).  This book is a must-read for anyone who working in child welfare.  There are common misperceptions about how to interview a child.  This book will assist defense attorneys with identifying problems in the interviews conducted and can assist with the daunting task of examining a child in open court.  Above all, it can be used to give guidance in the construction of your questions.

The book focuses mainly on studies conducted with children 10 years of age and younger, but includes tidbits regarding older children’s understanding and use of language.  The Appendix contains a Checklist for Interviewing Children that is a perfect refresher and a good guide for refining your questions prior to trial or interviewing children.

Trial Tip:  How to use in cross examination of case worker.

Q: You have received training in the interviewing of children.
A: Yes.
Q: One of the principles important in eliciting truth from children is to avoid being suggestive in your questions.
A: Yes.
Q: You are trained to avoid the use of phrases like, “I believe you told me,” in attempting to trigger a response in a child.
A: Yes.
Q: Your training also told you that starting a question in this manner may result in an unreliable response.
A: Yes.
Q:  Yet in your interview of the child regarding the abuse, you used the following question “Johnny, I believe you told me about when you daddy mistreated you.”
A: Yes.
Q: [So by your own testimony, the response to your question may be unreliable because of the manner in which you asked the question]
This final question should be used with care.  It is less risky to simply remind the Court of your cross examination and draw the same conclusion without the risk of eliciting an explanation from the worker.

It would be helpful for all parental-defense attorneys to be familiar with child interview techniques and critical statements that can elicit unreliable responses from children.  Parental Defense Attorneys should be able to review a child interview and identify problems with the interview that call into question the reliability of the answers. This book will help you to develop a working knowledge of the guiding principles in interviewing children and missteps that may have been taken in the interviews conducted with the children of your clients.

You can purchase copies HERE.

Department of Justice Seeks ICWA Compliance

Recently, Sheldon Spotted Elk, legal counsel for the Ute Tribe, attended the Tribal Nations meeting in Washington, DC. With Mr. Spotted Elk's permission we are posting his comments, and encourage all to follow the link provided to read the full text of Eric Holder’s address.

Greetings,

Yesterday during the Tribal Nations meeting in Washington DC, Eric Holder, Attorney General announced that DOJ is going to begin to actively file against ICWA violations.  This is exciting and fulfillment of the trust responsibility.  I feel that some of the work we have done is solid!!!!!   And has been recognized at National Conferences that I have been in attendance.  Proud to work with all of you and with Misty Butler, she is going to be missed.

“Today, I am pleased to announce that the Department of Justice is launching a new initiative to promote compliance with the Indian Child Welfare Act.  Under this important effort, we are working to actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities.  We are partnering with the Departments of the Interior and Health and Human Services to make sure that all the tools available to the federal government are used to promote compliance with this important law.  And we will join with those departments, and with tribes and Indian child-welfare organizations across the country, to explore training for state judges and agencies; to promote tribes’ authority to make placement decisions affecting tribal children; to gather information about where the Indian Child Welfare Act is being systematically violated; and to take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures”.

FULL TEXT of Holder’s Speech:
http://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarks-during-white-house-tribal-nations

Cheers,
Sheldon

Can Parental Defense Attorneys Communicate with DCFS Caseworkers?

At our Judge’s Panel Luncheon, a question came up regarding whether a parent attorney could attend a child and family team meeting or otherwise communicate with a DCFS caseworker without the presence of an AAG.  The following advisory opinion offers the answer.

Utah Rules of Judicial Administration Chapter 13 Rule 4.2 prohibits contact of represented persons by attorneys unless authorized by law, rule, or court order.

In 1993, the  advisory committee was asked in regards to the application of this rule in the context of agency employees and the Attorney General’s office.

The office provided the following opinion:

A lawyer representing a government department may not prevent his non-government counterpart from contacting any employee of the government office or department outside his/her presence, whether or not the communication involves a matter in litigation. However, if counsel for a private party contacts a government employee about pending litigation, counsel must inform the government employee (a) about the pending litigation or that the matter has been referred to agency counsel and (b) about his representation of a private party in that litigation.
Utah Ethics Adv. Op. No. 115 (1993).

This opinion was reaffirmed in July 1994 by Utah Ethic Adv.Op.No. 115R (1994).

In short, yes, a parental defense attorney can speak with the caseworker regarding the case--and even attend a family group meeting--without the AAG being present and without the AAG's permission, if the attorney discloses to the worker the existence of the litigation and discloses who the attorney represents.

Get Ready for Electronic Records

Some of you may be aware that Utah's Juvenile Court system is moving toward electronic records.  The PDA recently attended a an information session held by the AOC Juvenile Court Team regarding the new e-filing process.  

You will see from the infographic above that the first phase of the roll out will be mandatory by October 2015.  This will mean that for cases that have already been assigned a number by the clerk's office you will be required to file all pleadings and motions electronically.  The second phase will follow and will be for the creation of new cases.

One of the differences between e-filing at the District Court and e-filing at the Juvenile Court is that all filings for the Juvenile Court will be through CARE.  CARE stands for the Court and Agencies Record Exchange and is a portal not only for filing and accessing electronic records but contain information on specific cases and court calendars.

For those of you unfamiliar with CARE, now is the time to request access and familiarize yourself with the system.  You do not need to have any cases pending in the Juvenile Court in order to obtain a login.  We encourage all parental defense attorneys to request access to CARE.

Below are some helpful links to get your started:

• Instructions for requesting access to CARE

• E-filing information for the Juvenile Court

• Online training program for CARE

If you have any questions please let us know.