By Paula Mackin, Esq., Access to Justice Fellow
Entering a courtroom is intimidating, even for seasoned lawyers. As a foster parent, you might not be able to afford a lawyer of your own. The positions taken by the lawyers for DCF, the biological parents and the child may not be what you believe to be in the best interests of the child, and you, of all people, know that child. You may hope to adopt the child. If this is true, you should seriously consider participating in these important court proceedings, even if you do not have your own lawyer.
Following are some basic rules and guidelines which will help you understand the mystery of the court process when you decide to speak up on behalf of the child in your care.
Why Should I Attend Court Hearings?
Of course, not every foster parent wants to go to court. Unless you are “subpoenaed” or “summoned” (ordered) to “appear” (attend the court hearing), you do not have to appear.
However, if you would like to attend the court hearing, whether it’s a permanency hearing, a care and protection or termination of parental rights hearing, you are entitled under law to attend and be present in the courtroom. Indeed, your attendance and, more importantly, your testimony may be the single most powerful element influencing the outcome of the case. After all, you are with the child 24/7, and have information which no one else does and which is critical to that child’s future.
You can only be excluded from the courtroom if the judge decides to “sequester” (separate) witnesses and asks you to wait outside. A judge will sequester witnesses when hearing the testimony of another witness may improperly influence your own testimony.
Why Should I Testify at Court Hearings?
In addition to the right to attend, the law guarantees you the right to be heard in all court proceedings. Some lawyers and judges will be unfamiliar with this right, and you will have to request that you be allowed to testify (take the witness stand, answer questions and speak under oath). Using this packet of forms will maximize the chance that you will be allowed to testify.
Instead of testifying, you may be asked to provide comments without being sworn in. If you speak in court but are NOT sworn in under oath, your comments are NOT evidence. The judge may NOT rely on your statements in making her decision.
How Does the Judge Reach a Decision?
In making a decision, the judge must only rely on evidence, that is, authentic, first-hand, reliable observations of a credible witness who takes the witness stand and is sworn to tell the truth. There are many rules of evidence that determine whether a statement is or is not “good” evidence. All you need to know is that you should try to confine your sworn statements to what you personally observe to avoid either “hearsay” (repeating someone else’s statements) or opinion (your subjective belief about something or someone). A judge can only rely on opinion testimony if it comes from someone who the judge qualifies as an expert in some particular subject.
So what happens if you happen to make a statement that is not “good” evidence? One of the lawyers will probably object, and it will be excluded from evidence (“objection sustained”). Don’t let that upset you, it happens all the time. What you should NOT do is lie, exaggerate or offer your opinion about the fitness of the biological parents. Stick to what you have seen with your own eyes.
How Do I Prepare My Testimony?
In some instances, you may be allowed to present an “Affidavit” (a sworn written statement) as your testimony. This is an advantage because it allows you to present an organized summary of your observations. This sample can help you write an affidavit. However, in some cases the judge will decide you must testify on “direct” (making your own case) even though you have an affidavit available. In that case, you should be allowed to use the affidavit to organize yourself.
What is Cross Examination?
You will then be subject to “cross-examination”. This is the opportunity for the lawyers for the other parties to challenge your testimony. They may try to weaken your evidence by questioning your motives or memory, for example. Remain calm, composed and truthful. Remember you can answer “yes”, “no” and “I don’t know,” you do not need to explain or defend yourself. The truth is always the best response to cross examination. The fact that you may want and hope to adopt the child is not anything to hide. The fact you receive a subsidy of some kind for the child is nothing to be ashamed of either. Most of all, remember that you are there to advocate for that child, regardless of the outcome of the case, and that is a worthy effort.
Paula Mackin is an Access to Justice Fellow and retired children’s rights lawyer.