OBJECTIVES CRIMINAL PROCESS- PROSECUTING ATTORNEY S OFFICE NAVIGATING THE CRIMINAL AND CIVIL PROCESS IN CHILD ABUSE AND NEGLECT CASES

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1 NAVIGATING THE CRIMINAL AND CIVIL PROCESS IN CHILD ABUSE AND NEGLECT CASES LORI FLUEGEL ASSISTANT PROSECUTING ATTORNEY JACKSON COUNTY OBJECTIVES UNDERSTANDING OF THE CRIMINAL AND CIVIL PROCESS OF CHILD ABUSE AND NEGLECT CASES HOW THESE PROCESSES INTERFACE WITH YOUR DISCIPLINE UNDERSTANDING ISSUES THAT MAY ARISE IN THE PROCESS CRIMINAL PROCESS- PROSECUTING ATTORNEY S OFFICE FILING DECISIONS TO DISPOSITION OF CASES INCLUDING EVIDENTIARY ISSUES.

2 CIVIL - FAMILY COURT JUVENILE COURT BASIC OVERVIEW OF HOW THE CIVIL JUDICIAL PROCESS HANDLES CASES OF CHILD ABUSE AND NEGLECT FROM THE INITIAL REMOVAL OF THE CHILD TO THE DISPOSITIONAL HEARING WHY IS THIS IMPORTANT FOR ME TO KNOW? INVESTIGATING OR WORKING WITH A FAMILY: Child discloses boyfriend sexual abuse to her teacher, drug use in the home. Mom wants to believe the child but she needs the money and she loves him Mom needs proof that this happened Boyfriend said he will go to treatment WHAT HAPPENS NEXT? CHILD TAKEN INTO PROTECTIVE CUSTODY CRIMINAL INVESTIGATION CHILDREN S DIVISION INVESTIGATION

3 WHO CAN TAKE A CHILD INTO PROTECTIVE CUSTODY DEFINED BY STATUTE - WHO WHEN: REASONABLE CAUSE TO SUSPECT THAT A CHILD IS SUFFERING FROM ILLNESS OR IS IN DANGER OF PERSONAL HARM BY REASON OF HIS SURROUNDINGS CO -INVESTIGATION BY LAW ENFORCEMENT AND CHILDREN S DIVISION STATUTORY REQUIREMENT POLICY PROCEDURE BEST PRACTICE WHO IS REQUIRED TO REPORT CHILD ABUSE MOST STATES HAVE A MANDATORY REPORTING STATUE: MANDATORY REPORTERS MANDATORY REPORTERS FAILURE TO REPORT- CRIMINAL OFFENSE DEFINED BY LAW WHEN, REASONABLE CAUSE TO SUSPECT THAT A CHILD HAS BEEN OR MAY BE SUBJECTED TO ABUSE OR NEGLECT

4 DIFFERENT SYSTEMS Different goals Different players Different consequences WHAT ARE THE GOALS? FAMILY COURT: BEST INTEREST OF THE CHILD, CONTROL OVER THE FAMILY CRIMINAL: HOLD PERPETRATOR ACCOUNTABLE, PUNISHMENT HOW DO THE PROCESSES WORK AND WHAT ARE THE DIFFERENCES?

5 HOW DOES A CRIMINALCASE GET TO THE PROSECUTING ATTORNEY S OFFICE? LAW ENFORCEMENT AGENCY NOT: DIVISION OF FAMILY SERVICES FAMILY COURT GENERAL PUBLIC BURDEN OF PROOF BURDEN OF PROOF - BEYOND A REASONABLE DOUBT: DEFINITION PROOF THAT LEAVES YOU FIRMLY CONVINCED NOT PROOF BEYOND ALL DOUBT WHAT IS THE EVIDENCE? CHILDREN S DIVISION REPORTS POLICE REPORTS MEDICAL RECORDS OUTCRY STATEMENTS CAC INTERVIEW CHILD S TESTIMONY THERAPIST

6 OUT CRY WITNESSES: Friend of victim Sibling Police officer Therapist Teacher Mom or Dad Social service worker Child advocacy center USE OF OUTCRY STATEMENTS EXCEPTION TO HEARSAY MAY HAVE A HEARING OUTSIDE THE HEARING OF THE JURY EVEN IF HEARSAY IS ALLOWED CHILD MUST TESTIFY MAY NEED TO ESTABLISH A FOUNDATION TO ALLOW HEARSAY WHY DOES THE CHILD HAVE TO TESTIFY? CRAWFORD V. WASHINGTON: Testimonial statements are at issue the only indicia of reliability sufficient to satisfy constitutional demands is confrontation. Not a solid definition for testimonial

7 HOW LONG DOES THE INVESTIGATION TAKE? CASE FILE SUBMITTED TO THE PA MAY BE A CASE ALLEGED PERP IN CUSTODY MAY BE FILED AT A LATER DATE CASE FILED IN CUSTODY BY STATUTE ALLEGED PERP CAN BE HELD FOR A PERIOD OF TIME IF CHARGED IN CUSTODY REMAINS IN JAIL IF CANNOT MAKE BOND IF RELEASED FILED LATER WITH ARREST WARRANT/BOND SET WHAT IF NO STATE CHARGES FILED? MANY JURISDICTIONS OPTION TO SEND TO CITY COURT WITH A GOS WILL BE RELEASED WITH A SUMMONS TO APPEAR IN COURT SENTENCE PROBATION OR INCARCERATION CITY FACILITY

8 POSSIBLE CRIMINAL CHARGES CHILD ENDANGERMENT SEXUAL OFFENSES CHILD ABUSE OR ASSAULT CHARGES CHILD ENDANGERMENT CHILD ENDANGERMENT FIRST DEGREE: D FELONY KNOWINGLY ACTED IN A MANNER THAT CREATED A SUBSTANTIAL S RISK TO LIFE,BODY AND HEALTH CHILD ENDANGERMENT SECOND DEGREE: A MISDEMEANOR ACTED WITH CRIMINAL NEGLIGENCE IN A MANNER THAT CREATED A SUBSTANTIAL RISK TO LIFE,BODY AND HEALTH SEXUAL OFFENSES VARIOUS CHARGES PENDING: TOUCHING UNDER/OVER CLOTHES PENETRATION STATUTORY VS. FORCIBLE RE-EXPOSURE TO THE ALLEGED PERPETRATOR

9 CONSENT AS A DEFENSE SOME CRIMES ARE CONSIDERED STATUTORY - AGE OF THE CHILD/UNDER 14-1ST DEGREE 5 TO LIFE UNDER TO LIFE SECOND DEGREE -LESS THAN 17 AND DEFT. IS 21 OR OLDER- C FELONY MISTAKE OF AGE, MARRIAGE CHILD ABUSE/ASSAULT KNOWINGLING INFLICTED CRUEL AND INHUMANE PUNISHMENT ASSAULT 1 ST : KNOWINGLY SEROIUS PHYSICAL INJURY ASSAULT 2 ND RECKLESSLY ASSUALT 3 RD KNOWINGLY PHYSCIAL INJURY FILING DECISION WHAT NEXT? CHARGING DOCUMENT JUDGE ISSUES ARREST WARRANT DEFENDANT PICKED UP WARRANT HELD JAIL/BOND OUT INITIAL APPEARANCE /ARRAIGNMENT-BOND SET CHARGES READ TO DEFENDANT

10 PROCESS OF CRIMINAL CASE CASE SET FOR PRELIMINARY HEARING OR GRAND JURY FORMAL ARRAIGNMENT: BOND CONDITIONS SET ASSIGNED TO TRIAL DIVISION HOW DOES THE BOND AFFECT THE CASE? BOND CONDITIONS ARE SET, CAN CHANGE IN THE COURSE OF CASE IMPACT ON CASE: MAY INCLUDE NO CONTACT WITH THE VICTIM AND OR CHILDREN UNDER THE AGE OF 17 IF PRELIMINARY HEARING: PRELIMINARY HEARING MUST ESTABLILSH PROBABLE CAUSE THAT THE CRIME HAS OCCURRED TESTIMONY OF LAW ENFORCEMENT, CHILDREN S DIVISION, OR CAC TESTIMONY, AND CHILD

11 IF GRAND JURY CONSIST OF 12 JURORS DETERMINE IF PROBABLE CAUSE IF PC THEN TRUE BILL BOUND OVER FOR TRIAL IN CIRCUIT COURT CLOSED PROCEEDING DEFT IS NOT PRESENT OR ATTORNEY WHAT IS THE EVIDENCE AT TRIAL? OUTCRY WITNESSES MEDICAL TESTIMONY CHILD S TESTIMONY RAPE SHIELD PROTECTION NO PRIOR BAD ACTS OF EITHER SIDE ADMISSIONS AGN. INTEREST CANNOT COMMENT ON DEFT/ NOT TESTIFY OUT CRY WITNESSES: CHILD'S OUT OF COURT STATEMENT CAN COME INTO EVIDENCE FOR THE TRUTH OF THE MATTER ASSERTED HEARSAY EXCEPTION DIFFERENT IN EACH JURISDICTION

12 DISPOSITION OF CRIMINAL CASE TRIAL-JUDGE OR JURY GUILTY PLEA BY AGREEMENT PLEA UP TO THE COURT WITH A SENTENCING ASSESSMENT- SENTENCING GUIDLELINES DISMISSAL CONSIDERATIONS FOR PLEA CIVIL PROCEEDING MAY OR MAY NOT OCCUR SIMULTANEOUS TO CRIMINAL PROCEEDING TWO DISTINCT AND DIFFERENT AREAS OF RESPONSIBILITY LEGAL AUTHORITY STATUTES OF THE JUVENILE CODE CASE LAW CIVIL AND NOT CRIMINAL PROCESS

13 INTAKE PROCESS - HOW CASES GET TO THE JUVENILE OFFICER DIVISION OF FAMILY SERVICES HOSPITALS LAW ENFORCEMENT OTHER PUBLIC AGENCIES INTAKE PROCESS: REMOVAL OF CHILD TEMPORARY PROTECTIVE CUSTODY REASONABLE CAUSE OR PROBABLE CAUSE TO BELIEVE THAT THE CHILD IS WITHOUT PROPER CARE, CUSTODY AND SUPPORT AND TEMPORARY PROTECTIVE CUSTODY IS NECESSARY TO PREVENT PERSONAL HARM REMOVAL OF CHILD NOT REQUIRED TO FILE A PETITION/ JURISDICTION INTAKE PROCESS: THE DECISION TO NOT FILE A CASE VIABLE SAFETY PLAN NATURE OF ALLEGATIONS NO OR FEW PRIOR HOTLINES WILLINGNESS OF PARENT TO ACCEPT VOLUNTARY SERVICES WILLINGNESS OF AGENCY TO PROVIDE VOLUNTARY SERVICES

14 INTAKE PROCESS: THE DECISION TO FILE OBJECTIVE: TO ACCESS AND PROVIDE FOR THE LEGAL PROTECTION OF CHILDREN FROM SUBSTANTIAL RISKS OF SERIOUS OR CHRONIC ABUSE OR NEGLECT ABILITY TO ASSESS IS ONLY AS GOOD AS THE INFORMATION PROVIDED IMPERATIVE THAT TIMELY AND ACCURATE INFORMATION IS RECEIVED FROM AGENCIES INTAKE PROCESS: DECISION TO FILE BURDEN OF PROOF : STANDARD OF PROOF: CLEAR AND CONVINCING PERPONDERENCE OF THE EVIDENCE NOT PROOF BEYOND A REASONABLE DOUBT INTAKE PROCESS; ORDER OF PROTECTIVE CUSTODY AFTER TIME ON TEMPORARY JUDGE MUST ORDER PROTECTIVE CUSTODY MAY OR MAY NOT REQUIRE A HEARING: OBTAINED EX PARTE REQUIRES CERTAIN FINDINGS

15 COURT ACTION: CRITICAL TIMELINES GENERALLY HIGHLY STRUCTURED GENERALLY ADVERSARIAL LEGISLATION HEAVILY INFLUENCES TIMELINES CRITICAL COURT HEARINGS PRE-TRIAL (18 DAYS) ADJUDICATION (60) DAYS DISPOSITION (60-90 DAYS) COURT ACTION- ADJUDICATION WITHIN 60 DAYS OF REMOVAL PURPOSE: TO DETERMINE WHETHER ALLEGATIONS ARE TRUE AND IF TRUE WHETHER THE STANDARD OF LAW HAS BEEN VIOLATED ADVERSARIAL PROCESS; RULES OF EVIDENCE CRAWFORD DOES NOT APPLY- CIVIL PROCEEDING PARENT S FAILURE TO TESTIFY MAY DRAW AN ADVERSE INFERENCE COURT PROCESS: DISPOSITION WITHIN DAYS OF REMOVAL PURPOSE: FOR JUDGE TO DECIDE LEGAL CUSTODY OF CHILD AND DETERMINE APPROPRIATE TREATMENT PLAN ADVERSARIAL PROCESS; RULES OF EVIDENCE JUDICIAL DETERMINATIONS REASONABLE EFFORTS INITIAL PERMANENCY PLAN

16 ADOPTION SAFE FAMILIES ACT Enacted in 1997 Child s safety and permanency remain principal focus Mandate to initiate steps if child removed from home 15 out of 22 months Court s discretion can waive best interest of the child CONT. SAFE FAMILIES Specific time frames for court review Ability to bypass family reunification in extraordinary high risk situations: chronic abuse, torture, death of a sibling child Incentive payments to states to increase the number of adoptions TOP TEN DIFFERENCES: 1. Burden of proof 2. Removal from home: alleged perp vs. child 3. Charges: elements vs. general best interest 4. Focus of proceeding: punishment vs. best interest of the child

17 TOP TEN DIFFERENCES: 5. Role of the County Attorney: behalf of the state vs. quasi attorney client social service agency 6. Attorneys: one prosecutor vs. every participant has right to represented 7. Time Frame of case 8. Evidence: restricted vs. liberal discovery TOP TEN DIFFERENCES: 9. Testimony: jury does not hear suppressed evidence vs. judge is trier of fact. 10. Child s testimony: child must testify vs. child s statement can stand alone.