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Adjudication Hearing Bench Card - Enhanced Resource Guidelines

Office of Juvenile Justice and Delinquency Prevention (OJJDP)

Overview

The Enhanced Resource Guidelines was developed by a steering committee of the National Council of Juvenile and Family Court Judges (NCJFCJ) comprised of judicial officers, content experts, and the NCJFCJ staff dedicated to improving the lives of children and families involved in the child welfare system. This publication is recommended for use by judges and court professionals as a tool to enhance court practice in child abuse and neglect cases.

The NCJFCJ would like to extend our thanks to the Honorable Stephen M. Rubin, Dr. Sophia I. Gatowski, Nancy B. Miller, the Honorable Patricia Escher, Candice Maze, Tamatha Schreinhert, Melissa Gueller, Dr. Shawn C. Marsh, Elizabeth Whitney Barnes, Victoria Sweet and Jackie Ruffin for their efforts in drafting and reviewing this document. The NCJFCJ also wishes to acknowledge the Enhanced Resource Guidelines Steering Committee whose insightful and rich conversations contributed to the development of these guidelines.

We would also like to acknowledge the contributions made by the many individuals who were involved in the development of the original Resource Guidelines and Adoption and Permanency Guidelines.

This will only cover the Adjudication Hearing Bench Card from the Enhanced Resource Guidelines, please download the PDF full access to the entire document.

Case Management – Before the Hearing

Persons who should be present at the adjudication hearing

  • Judge or judicial officer
  • Parents of each child whose rights have not been terminated
    • Mothers, fathers (legal, biological, alleged, putative, named), non-custodial parents – all possible parents
  • Child
  • Assigned caseworker
  • Agency attorney and/or prosecuting attorney
  • Attorney(s) for each parent
  • Legal advocate for the child
  • Guardian ad Litem (GAL); CASA
  • The child’s current placement (caregivers, foster parents, custodial adults, adoptive parents)
  • All adult relatives of the child
    • Relatives (P.L. 110-351) with legal standing or other custodial adults, including adult half- siblings; paternal and maternal relatives
  • If ICWA applies: Indian custodian; the child’s tribe and attorney; tribal representative/tribal liaison; ICWA-qualified expert witness
  • Court reporter
  • Court security

The adjudication hearing should be held within 60 days from removal
at the latest in order to comply
with the ASFA goal of providing an expedited process to find children in temporary placements permanent homes. Continuances or extensions should be permitted only in the most extraordinary circumstances.

The Reasonable Efforts to Prevent Removal Finding must be:

  • made within 60 days of the child’s removal (45 C.F.R. § 1356.21(b)(1));
  • explicitly documented by reference to facts (45 C.F.R. § 1356.21(d)); and
  • made on a case-by-case basis (45 C.F.R. § 1356.21(d)).

Persons whose presence may also be needed at the adjudication hearing:

  • Non-related extended family, fictive kin (persons known and trusted by the families; godparents)
  • Parents of a sibling child, where such parent has legal custody of the sibling (P.L. 113-183)
  • Law enforcement officers
  • Treatment and/or service providers
  • Parent partners, parent mentors if assigned/available, substance abuse coach, DV advocate
  • Education liaison/school representative
  • Education surrogate parent if appropriate
  • Adult or juvenile probation or parole officer
  • Court-certified interpreters or court-certified language services

Review relevant documents.

REVIEW THE PETITION

  • A sworn petition or complaint must be filed and served/provided to the parties sufficiently in advance of the hearing.
  • The petition must be specific about the facts that bring the child before the court.
  • The petition should not be conclusory without relevant facts to explain and support the conclusions.
  • The petition must include allegations specific to each legal parent or legal guardian if appropriate.
  • Petitions/removal affidavits need to include specific language clearly articulating the current threat to the child’s safety.

Consider whether there are any related cases in juvenile or other courts.

  • Are there other family, delinquency, domestic violence, probate, guardianship, or criminal cases or orders of protection involved in this case?
  • Can these cases be consolidated before one judge?
  • Is there a potential for duplicative or conflicting orders?
  • Can the judges consult?

Conducting The Adjudication Hearing

Opening the Hearing

  • Call the case.
  • Identify the people in the courtroom and their connection to the case.
  • Explain the type and purpose of the hearing.
  • Swear in the parties, participants, and relatives.

Due Process and Due Diligence Considerations

IDENTIFICATION OF PARENTS AND/OR GUARDIANS

  • Who are the child’s parents and/or guardians?
  • Have the identity and location of all parents and/or guardians been determined?
    • If not, what diligent search efforts have been made for all parents and/or guardians? Are they sufficient?
    • Have efforts to identify and locate fathers been sufficient? What has been done?
    • Has paternity of all children been legally established? If so, how?
      • Conduct a paternity inquiry if still in dispute.
      • If a parent has not legally established paternity, DNA testing should be ordered after proper inquiry.

NOTICE

  • Ensure that reasonable notice of the date, time, place, and purpose of the hearing was achieved.
  • How were the parents/guardians and foster parents notified of this hearing?
    • If child, parents, caregivers, or relatives who requested notices are absent, confirm that they were properly noticed.
  • Was the notice in a language and form understandable to the parents/guardians or foster parents?
  • Has the agency exercised due diligence to identify and provide notice to all adult relatives of the child’s removal and their options to participate in the child’s care and placement? (42 U.S.C. § 671(a)(29))
  • Verify that the agency used due diligence to notify all relatives within 30 days of removal as required by the Fostering Connections Act (H.R. 6893/P.L. 110-351 § 103).
    • Verify that relatives who requested notice actually received notice to attend the hearing (P.L. 110-351 § 103).
  • Has the agency exercised due diligence to provide notice to all parents of a sibling of the child, where such parent has legal custody of the child? (P.L. 113-183 § 471(a)(29))
  • If the child is eligible for membership in a federally recognized tribe, confirm that the tribe has been notified pursuant to ICWA.

REPRESENTATION

  • Advise any unrepresented party of their right to counsel, including court-appointed counselif indigent.
    • If parents do not have counsel, advise of the right to counsel, ascertain whether the right to counsel is understood, and appoint counsel for parents who qualify as indigent.
    • Are there language issues to consider in appointing counsel?
  • Does counsel have sufficient training and experience to provide competent representation in this case?
  • Has counsel had sufficient opportunity to consult with his/her client prior to the hearing?
  • If counsel is waived, determine if waiver is made knowingly, intelligently, and voluntarily.
  • Appoint counsel to represent the child if one has not yet been appointed.
    • Does counsel have sufficient training and experience to represent the child in this case?
    • Has counsel met with the child in person? Is counsel able to determine and advocate the child’s position?
    • Should the court appoint a Guardian ad litem and/or CASA for the child?
    • Appoint counsel to represent the child if one has not yet been appointed.

UNDERSTANDING AND COMPETENCY

  • Do the parents understand the allegations and the purpose of the hearing?
  • Are there parental competency issues?

APPLICABILITY OF OTHER FEDERAL LAWS AND REGULATIONS

  • Do the provisions of the Americans with Disabilities Act, Service Members Civil Relief Act, UCCJA/UCCJEA, ICPC, or other federal laws apply to this case?

Engage parents and any children or relatives present.

  • What language are you most comfortable speaking and reading?
  • Do you understand what this hearing is about? (Explain the purpose of the hearing.)
  • Do you understand the petition? (Review the petition with parties.)
  • Were you involved in any ADR process used before this hearing? If yes, what was the outcome?
  • Have you had sufficient opportunity to speak with your counsel prior to this hearing?

Key Inquiries, Analyses, and Decisions at the Adjudication Hearing

REFLECTIONS ON THE DECISION-MAKING PROCESS TO PREVENT BIAS

Take a moment before every hearing or before making decisions in a case to ask yourself:

  • What assumptions have I made about the cultural identity, genders, and background of this family?
  • What is my understanding of this family’s unique culture and circumstances?
  • How is my decision specific to this child and this family?
  • How has the court’s past contact and involvement with this family influenced (or might influence) my decision-making process and findings?
  • What evidence has supported every conclusion I have drawn, and how have I challenged unsupported assumptions?
  • Am I convinced that reasonable efforts (or active efforts in ICWA cases) have been made in an individualized way to match the needs of the family?
  • Am I considering relatives as preferred placement options as long as they can protect the child and support the permanency plan?
  • Have I placed the child in foster care as a last resort?
  • Have I integrated the parents, children, and family members into the hearing process in a way that ensures they have had the opportunity to be heard, respected, and valued? Have I offered the family and children the chance to respond to each of the questions from their perspective?
  • Is this family receiving the same level and tailoring of services as other families?
  • Is the parents’ uncooperative or negative behavior rationally related to the involvement of the agency and/or the court?
  • If this were my child, would I be making the same decision? If not, why not?

Indian Child Welfare Act (ICWA) Determination

Inquire as to whether the child or parents may be of Native American heritage (25 U.S.C. §§ 1903, 1912, and 1922). If such heritage is a possibility, until such a determination is made, the court should proceed as if ICWA applies.

  • Has an ICWA determination been made? If yes, different standards apply; refer to the ICWA Checklist.
  • If ICWA applies, inquire whether:
    • The party seeking the adjudication has notified the parent or Indian custodian and the Indian child’s tribe of the hearing by registered mail with return receipt requested (25 U.S.C. § 1912).
    • There is a qualified expert witness who will be providing testimony about the imminent risk of serious physical or emotional harm to the child if left in the custody of the parents (25 U.S.C. § 1912(e)).
  • If an ICWA determination has not been made, does ICWA apply? Refer to the ICWA Checklist.

Adjudication Hearing Bench Card - Enhanced Resource Guidelines

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