AG 2007 01 22 - Laserfiche WebLink

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Action: The agency attorney should consult with the caseworker and the child's attorney or GAL to decide whether the child should be present and/or testify at a hearing. 1t is important to consider the child's wishes, any possible effects of the testimony and the child's developmental ability to handle cross-examination. The agency attorney and child's attorney should decide together who will present the child's testimony. If the child is represented by an attorney (including an attorney serving as a guardian ad ]item), the agency attorney may not speak with the child directly without the permission of the child's attorney, because the child is not his or her client.10 Questions posed to the child should be clear and asked with the child's ability to understand in mind." Consider requesting an in camera hearing, excluding the parents from the courtroom, or videotape for the child's testimony. Even when the child is not testifying, there may be a benefit to having the child present in court.12 For example, the child's presence may help the judge focus specifically on the child's needs, and the child may understand how the court makes its decisions. The basis of the decision concerning the child's presence in court should be any state law concerning the child's right to be in court and the child's safety, best interests, and emotional well-being. The agency attorney and caseworker, in coordination with the child's attorney or GAL, should consider whether being in court will be helpful to the child, whether he or she may want to be a part of the proceedings, and whether the child's presence will advance the position of the agency. Commentary: Generally, the child should be present at substantive hearings because the proceeding concerns the child's life and the child's input must be considered. If the child can handle being in court, his or her presence is important because the judge and other parties should have the opportunity to become acquainted with the child as an individual.'3 This may have an important tactical impact on the case. For example, it is more difficult to continue a case when the judge actually sees the child getting bigger and older and remaining in foster care with no status change. However, if the child will be traumatized by the experience, he or she should not be present in court. Deciding whether to call the child as a witness can be difficult. There could be a conflict between the caseworker's judgment and the agency attorney's recommendation on strategy to win a case. For example, in a sexual abuse case, the caseworker may believe it would be too difficult for the child to testify, whereas the attorney may think that without the child's testimony the judge would dismiss the case. In this type of situation, the attorney and caseworker should resolve the issue before court and may need to use the conflict resolution system as set forth in D-1 above. if the child is called to testify during the agency's case in chief, opposing parties and the judge may agree to allow the child's attorney to conduct the direct examination to make the child more comfortable. The judge may also agree to hear the child in chambers so the child does not have to testify in front of the parents. In a civil action there is no absolute right to confrontation 18