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Appendix 5432.3: Preparing for and Participating in the Adversary Hearing: Tips and Information

CPS December 2013

The Caseworker’s Preparation

To prepare for a Chapter 262 Adversary Hearing, do as follows:

  •  Reread the case! Know the children’s ages. Know the names that the parents commonly use for each child.

  •  Be prepared to submit the following information to the court (after removing Social Security numbers):

  •  A list of potential caregivers for the child (see Form 2625 Child Caregiver Resource)

  •  A home assessment for persons named on Form 2625

  •  The name of the relative or other designated caregiver with whom the child was placed

  •  The reasons why DFPS did not place the child with any person listed on Form 2625

  •  The actions DFPS has taken, if any, to place the child with a relative or designated caregiver. (See Form 2637 Notification Regarding Relatives/Designated Caregivers).

  •  Contact witnesses and verify facts, if directed to do so by the attorney representing DFPS.

  •  Update the case information regarding the child’s status, including the child’s placement, the child’s medical information, and any significant developments.

  •  Review the affidavit and the investigative report.

  •  Check that all parties have been served, if it is regional practice for the caseworker to do so, and verify the date of the return on the proof of service. If all parties have not been served, notify the attorney representing DFPS.

  •  Check with the court’s clerk about the date and time of the hearing, if it is regional practice for the caseworker to do so, and notify everyone involved.

  •  Notify the attorney representing DFPS about witnesses who may need to be subpoenaed, if it is regional practice for the caseworker to do so.

  •  Review the policies and procedures applicable to this case, as published in this handbook.

  •  Be prepared to explain why there is a substantial risk of continuing danger to the child, if the child is returned to the home.

  •  Prepare a chronology, listing important dates, and give a copy to the attorney representing DFPS. (Have an extra copy ready, in case the parents’ attorney takes one.)

  •  Submit to the court, at least 10 days before the hearing:

  •  a copy of the Form 2625 Child Caregiver Resource (if not previously submitted),

  •  a copy of the results of any home assessment completed in response to the form, and

  •  the name of the relative with whom the child is placed, or the reason why the placement was not made and the actions that CPS is taking to place the child with the relative.

  •  Arrive early to court. The attorney representing DFPS may need to confer with you, and you may be the only one who can recognize the witnesses.

  •  Dress and act like a professional; do not chew gum in court.

Questions You May Be Asked When Testifying

  •  State your name.

  •  How are you employed?

  •  What are your job duties? (Be sure to explain your job duties in a way that illustrates how you are qualified to do the job that relates to your testimony.)

  •  Are you familiar with the child’s situation?

  •  Tell the court how CPS became involved with this child.

  •  What did the CPS investigation reveal?

  •  What was the condition of the child when CPS investigated?

  •  What, if anything, did the child say about the allegations?

      (This question may draw objections, so speak with the attorney representing DFPS about it before the hearing.)

  •  What, if anything, did the parents say about the allegations?

  •  Was there a danger to the physical health or safety of the child that was caused by an act or failure to act of the person entitled to possession of the child? If so, explain how the act or failure to act endangers the physical health or safety of the child.

  •  Is it contrary to the child’swelfare to remain in the home? If so, how is it contrary to the child’s welfare?

  •  Did the urgent need for protection require the child’s immediate removal and did it make efforts to eliminate or prevent the removal unreasonable? (OR: What efforts were made to prevent or eliminate the need for removal?) If no efforts were made, explain why you determined that no efforts were reasonable under the circumstances of this case?

  •  When was the child removed?

  •  Is there a substantial risk of continuing danger to the child if he or she is allowed to return home? If so, what is the risk and why is it substantial?

  •  What actions has DFPS taken to locate a placement for the child, other than placing the child in DFPS substitute care?

  •  Is it in the best interest of the child to name DFPS as the temporary managing conservator of the child? If so, how is it in the child’s best interest?

  •  Since the removal, please describe for the court what else the investigation has revealed.

  •  Have you located either the noncustodial parent or any relatives? If not, why not? If yes, why have you decided not to place the child with them?

  •  Did the parents complete Form 2625 Child Caregiver Resource?

  •  Did you place the child with a person designated on Form 2625 Child Caregiver Resource? If not, why?

Surviving Cross-Examination

A caseworker testifying at a Chapter 262 hearing needs to be prepared to demonstrate that the following are based on objective facts that are carefully documented:

  •  The investigation

  •  The affidavit

  •  The efforts made to prevent removal

  •  The plans for the child

Be Prepared and Think Before You Answer

At the adversary hearing, a parent’s attorney may attempt to portray the caseworker as biased or uninformed and the investigation as flawed.

If you avoid making biased statements, making conclusions that are unsupported by facts, and making inaccurate statements in the affidavit and in your testimony, it is more difficult for the parent’s attorney to discredit you and your testimony.

Always listen carefully to the questions that a parent’s attorney asks and take the time to think through before answering. If you are not certain of the answer, ask the attorney to repeat the question. If you are still uncertain, state that you are uncertain. Do not guess.

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