Registration – 7:30 am, Program – 8 am Ramkota Hotel, Sioux Falls this CLE is free to all active bar members – all others, cost is $100
8:00 a.m.
Introductions
8:10 a.m.
Best Practices: Representing the Parent in A&N Cases – Lyndsay DeMatteo, Minnehaha Co. Public Advocate’s Office
8:50 a.m.
Best Practices: Representing the Child in A&N Cases – Meghan McCauley, East River Legal Services
9:30 a.m.
Break
9:40 a.m.
CPS’s Role in A&N Cases, Vicki Burger, DSS
10:20 a.m.
Pediatric Forensic Interviewer: Working with Traumatized Children in the Court Room, Amanda Liebl, Child’s Voice
11:00 a.m.
Break
11:10 a.m.
Panel Discussion: Best Practices | FQA for A&N Manual, Judge Hoffman, Prosecutor – Carrie Mees, CPS – Vicki Burger, DSS Attorney/ Client – Kasey Olivier, Heidepriem, Purtell, Siegel & Olivier
A CLE on Alternative Dispute Resolution will be held in the afternoon. If you wish to have this program submitted to a mandatory CLE jurisdiction for CLE credit, please see Tracie (tracie.bradford@sdbar.net) or Nicole (nicole.ogan@sdbar.net) at the registration desk or drop them an email.
Carrie Sanderson & Tara Adamski, Co-Chairs
The State Bar of South Dakota, and The Committee on Continuing Legal Education Present:
Juvenile Law
BEST PRACTICES
For representing PARENTS in A&N proceedings
Lyndsay DeMatteo
Parents have a substantive liberty interest in the care, custody, and control of their children – SDCL 26-7A31 provides that parents have a right to counsel in abuse and neglect proceedings. That counsel must be effective; otherwise, the right is wholly imaginary.
With the purpose of promoting quality representation and uniformity of practice throughout the country, The American Bar Association has written standards of practice for attorneys representing parents in Abuse and Neglect Proceedings:
https://www.americanbar.org/content/dam/aba/administrative/child_law/ParentStds.authcheckdam.pdf
PROVIDE THE CLIENT WITH CONTACT INFORMATION IN WRITING AND ESTABLISH A MESSAGE SYSTEM THAT ALLOWS REGULAR ATTORNEY CLIENT CONTACT
John Doe – FATHER 605-555-1212 (disconnected as of 20160901) Sentenced to SDSP in June 2017; 10 years (3 years, 6 months suspended; he had Attorney _________ on that file). Initial parole appears to be 2020. He’s currently housed in the CCC work center but through prison, NOT the jail. DSS: CASA:
__________________(worker name) __________________(worker name)
August 18, 2016 Called client to let him know Judge appointed me to represent him, I’ve already reviewed the documents, and am ready to go this afternoon at 3PM. Confirmed with him the location of the hearing, to meet with me a little before the hearing and also not to worry if he doesn’t see me right away b/c I have court in 4C at 2:30. September 1, 2016 Call client to check in; phone disconnected. October 1, 2016 Call client to check in; phone disconnected. NOTE: mail returned as well. Need new address. January 1, 2017 ADJUDICATORY HEARING w/ Judge and SAO (Court reporter?) Attorney – child Attorney – mom, present; signing stipulation under subsection 2 My client – present; signing no fault stipulation under subsection 5 Judge: advises on purpose of stipulation, effects of signing, etc. Client understands; no questions; not F/T/P.
MEET AND COMMUNICATE REGULARLY WITH THE CLIENT WELL BEFORE COURT PROCEEDINGS. COUNSEL THE CLIENT ABOUT ALL LEGAL MATTERS RELATED TO THE CASE, INCLUDING SPECIFIC ALLEGATIONS AGAINST THE CLIENT, THE SERVICE PLAN, THE CLIENT’S RIGHTS IN THE PENDING PROCEEDINGS, ANY ORDERS ENTERED AGAINST THE CLIENT AND POTENTIAL CONSEQUENCES OF FAILING TO OBEY COURT ORDERS OR COOPERATE WITH SERVICE PLANS
• Depends on the hearing: • 48 hour • Investigation • Petition filed or not? • Advising • Adjudicatory pre-trial • Adjudicatory trial • Review • Dispositional trial
• During this meeting: • Issue spot with client • ICWA? • Facebook and other social media • Explain the role of DSS • Local or out-of-state client • Visitation as a priority • Communication • Communication • Communication
WORK WITH THE CLIENT TO DEVELOP A CASE TIMELINE AND TICKLER SYSTEM
TAKE DILIGENT STEPS TO LOCATE AND COMMUNICATE WITH A MISSING PARENT AND DECIDE REPRESENTATION STRATEGIES BASED ON THAT COMMUNICATION
BE AWARE OF THE UNIQUE ISSUES AN INCARCERATED PARENT FACES AND PROVIDE COMPETENT REPRESENTATION TO THE INCARCERATED CLIENT
BE AWARE OF THE CLIENT’S MENTAL HEALTH STATUS AND BE PREPARED TO ASSESS WHETHER THE PARENT CAN ASSIST WITH THE CASE
REVIEW THE CHILD WELFARE AGENCY CASE FILE – DUH. BUT SERIOUSLY: READ THE DOCUMENTS.
ENGAGE IN CASE PLANNING AND ADVOCATE FOR APPROPRIATE SOCIAL SERVICES USING A MULTIDISCIPLINARY APPROACH TO REPRESENTATION WHEN AVAILABLE
AGGRESSIVELY ADVOCATE FOR REGULAR VISITATION IN A FAMILY FRIENDLY SETTING
Meghan McCauley 1
A South Dakota native, Meghan grew up in Sioux Falls where she attended O’Gorman High School. She went on to attend the University of South Dakota for both undergraduate and graduate schools. Meghan obtained her Juris Doctorate from the University of South Dakota in 2014. Following law school Meghan relocated to Lubbock, Texas. While awaiting licensure in Texas, Meghan began volunteering with CASA of the South Plains and later became an Advocacy Coordinator for that same program. During her time at CASA, Meghan worked closely with the Texas Department of Family and Protective Services as well as other stakeholders to ensure a safe, stable, and permanent home the children on her caseload. After leaving CASA of the South Plains, Meghan went on to begin her practice with Legal Aid of NorthWest Texas where she focused primarily on assisting victims of domestic violence and guiding peripheral stakeholders through the CPS process. Meghan presented a continuing legal education course on working with the Texas Department of Family and Protective Services at the 2016 Annual Texas Poverty Law Section Meeting in Austin, Texas and has drafted the texaslawhelp.org CPS Handbook which can be found online. Meghan is currently a Staff Attorney with East River Legal Services located in Sioux Falls, South Dakota where her practice focuses primarily on representing children in abuse and neglect proceedings and assisting victims of domestic violence.
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Best Practices: Representing Children in A & N Cases Meghan McCauley East River Legal Services, Staff Attorney Email: m.mccauleyloof@gmail.com
About Me
3 • • •
South Dakota Native Education: • •
Graduate of O’Gorman High School BA and JD from University of South Dakota
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Advocacy Coordinator for CASA of the South Plains • Focused Involvement with Texas Department of Family and Protective Services Staff Attorney at Legal Aid of Northwest Texas • Focus on assisting victims of domestic violence and CPS Staff Attorney at East River Legal Services • Focus on representing children in abuse and neglect proceedings and assisting victims of domestic violence
Work Experience:
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•
•
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2016: Presented a CLE on working with the Texas Department of Family and Protective Services at the Annual Texas Poverty Law Section Meeting 2017: Texaslawhelp.org CPS Handbook
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General Time Line Of An A & N Case: 48 Hour Hearing
Petition Filed or Children Returned
• Parents are advised of their rights and counsel for parents is appointed • At this time parents can 1) waive the hearing, 2) request continuance, or 3) request hearing
• If petition is filed, attorney for the children will be appointed at that time • Parents advised of their rights
Investigation/IFA
Protective Custody
14 Day Investigation by DSS
• The determination of whether or not protective custody is necessary is initially made by law enforcement
• If DSS is successful in their request at the 48 Hour Hearing, they will be granted 14 days to investigate the matter • A 14 day extension may be requested and granted bringing the total time to 28 days
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General Time Line Cont.
Adjudicatory Trial
Dispositional Hearing
• Held to determine whether or not the children were abused or neglected as prescribed by statute1
• The initial dispositional hearing must be held within 12 months of the children coming into protective custody • There will likely be at least one continuance, if not more, to allow for progress on the plan of service
South Dakota Codified Law 26-8A-2 USC 675(B)
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• Possible outcomes include: 1) Parental rights terminated, 2) more time allowed for parents to work with DSS, or 3) child returned home to parents
• Federal law dictates that a review hearing must be held every 6 months2
• Usually held within 30 days to determine whether a Stipulation will be reached or if trial is necessary
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Final Dispositional Trial
Review Hearing
Adjudicatory Pre-Trial Conference
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Ground Rules: Vocabulary Overview: DSS: Department of Social Services FSS: Family Services Specialist or South Dakota Department of Social Services case worker IFA: Initial Family Assessment, usually done by a DSS investigator (whether on-call or assigned) CASA: Court Appointed Special Advocate ICWA: Indian Child Welfare Act SAO: States Attorney’s Office ICPC: Interstate Compact on the Placement of Children
You have to approach these files with the attitude the kids are better off when/if they reside with either their parents or a close relative Your concern is ensuring the child has a safe, stable, and permanent home where their basic needs are met
You do not have to agree with the recommendations of DSS, SAO, or CASA Formulate your own position on the matter and stick to it
Relevant state law can be found at South Dakota Codified Law Chapter 26-8A
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General Duties and Responsibilities in Advocating for Children in Foster Care1 The South Dakota Guidelines for Judicial Process in Abuse and Neglect Cases (hereinafter Guidelines) provides a non-exhaustive list of the duties and responsibilities of attorneys appointed to represent children The Guidelines detail some, but not all, of the considerations that an attorney should evaluate when accepting an appointment This presentation is intended to provide an overview of both the Guidelines and supplemental considerations for practitioners who are currently accepting or considering accepting appointments to represent children in A & N proceedings Remember, no two cases are alike Keeping the best interest of the child as your primary focus will help you dictate your course of actions
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First and foremost, A & N Files are your top priority1 Abuse and neglect files should take priority over all other files being handled by the attorney of record These cases can and should be time intensive. Thus, representing a child necessitates a significant time commitment from the practitioner Common Sense Conclusion: Do not commit to an appointment in an A & N proceeding unless your schedule permits. You owe it to your client to make his or her best interests your top priority Suggested Actions: Send discovery letter to SAO, DSS, and other parties to the case Immediately after appointment contact the DSS caseworker and obtain contact and placement information for the child/children Contact placement and set up a time to meet with the caregiver and child/children
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Meet with your client! Meeting the children is one of the most important aspects of your job as their attorney It is incredibly difficult to state your client’s position when you have never met with them to discuss it Do not lose sight of the fact that this an adversarial process. Your client’s interest will not always line up with those of his or her parents and/or siblings
It is important that you work with DSS, CASA, and others to ensure that the children are appropriately cared for during their time in foster care Any concerns should be documented and reported immediately to DSS and/or SAO and stated on the record at the next hearing
Meeting with your client on a regular or semi-regular basis sets the tone for the attorney-client relationship and the rules of professional conduct obligate you to do so By doing so, you provide the child with consistency and reassurance which is imperative to most children in these situations South Dakota Rules of Professional Conduct Rule 1.4 require the attorney to communicate with their client to the extent reasonably necessary to permit the client to make informed decisions
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Meeting With Your Client Cont. This also sets the tone for your involvement in the case Caregivers realize you want to be an active role If caregivers see your commitment, they may provide you with a plethora of information you would not otherwise receive
Common Sense Conclusion: you have an ethical obligation to meet with your client and discuss the status of the case. While the approach is much different when working with children, the obligation exists nonetheless Suggested Actions: Plan to meet your client in their current home at least one time prior to the next court date Provide your contact information to the caregiver and child (if appropriate) DO NOT make promises you cannot keep Explain your role to both the client and the caregiver
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Monitor the File Cultural considerations Cases involving ICWA require a finding beyond a reasonable doubt whereas cases not involving ICWA must only rise to the level of clear and convincing evidence Guidance on cases involving ICWA can be found by reviewing the Bureau of Indian Affairs Guidelines for State Courts (see supplemental materials)
Discovery materials Discovery discs will/should be received periodically from DSS. If you do not receive a disc or have not received one in some time, contact the SAO immediately Avoid being overwhelmed before a hearing or trial by continually reviewing the discovery materials throughout the life of the case
Interview witnesses Relationship building with your client, caregivers, family, service providers, etc. during the lifecycle of the case will help you satisfy this requirement
Deadlines and calendaring Figure out what works for you Typically there will be a 30, 60, or 90 day continuance between hearings but you cannot always rely on that
Many of the file monitoring solutions on this slide can be tackled by working together with CASA
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Advocate For A Speedy Resolution Final disposition must occur within 12 months3 There are times when good cause may exist to extend the case beyond 12 months The maximum time any of your clients should be without a resolution is 18 months
Common Sense Conclusion: Scrutinize every extension as compared to the best interest of your client Be workable but do not agree just for the sake of agreement, there may be times that you can and should disagree with the request for continuance
Suggested Actions: Voice these concerns on the record and have an argument prepared as to why you are opposing the request Review of discovery and/or contact with placement/DSS/SAO/counsel for parents/medical or treatment providers will typically provide your basis for either agreement or disagreement with the requested continuance 3
SDCL 26-8A-26
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Protect Your Client(s) From Testifying If At All Possible There are times when the SAO or other party may wish to call your client as a witness This is rare but it can and does happen from time to time
Common Sense Conclusion: Get creative and attempt to find a way to avoid retraumatizing your client by having him or her testify
Suggested Actions: Resist the request and request a motions hearing to state your objections on the record File a notice of intent to use hearsay4
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SDCL 19-19-806.2 and SDCL 19-19-807 (residual exception), See also, Matter of J.B., 2008 SD 80, 755 N.W.2d 496, and In the Matter of S.A., A.A., E.A., and A.A., 2005 SD 120, 708 N.W.2d 673
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Be Active and Involved For the Duration of the Case
Make it known to all parties that you wish to play an active role in the case
Working with CASA can be a helpful way to stay engaged Rely on your CASA worker for more intricate knowledge of your client’s well-being and case progress CASAs typically have one case at a time which allows them to be very engaged
Common Sense Conclusion: The end result of an A & N file will have a substantial impact on your client both now and in the future
Suggested Actions: Attend any and all meetings either in person or by telephone This is an excellent way to learn more about the family, case plan, and your client (especially helpful when your client cannot communicate with you due to age or mental capacity)
Give an update to the court at every hearing These do not need to be lengthy but should clearly indicate your client’s position and your stance on the case progress
Read the reports Oftentimes there is information contained in both the DSS and CASA report which may help you determine your position on the case
Keep open lines of communication with all parties so that if an issue comes up they remember to include you in the conversation
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You Have a Duty to Put on Evidence While DSS may have the burden of proof, as the attorney for the child you have an ethical obligation to put on evidence You may call your own witnesses and offer exhibits If you do not call your own witnesses, the evidence will come in the form of crossexamination “The child’s interest should be protected throughout the proceedings and the child’s attorney is specifically charged with hat duty5.”
Common Sense Conclusion: As with any other client, you have an obligation to advocate for your client Advocacy should focus on your client’s interests
Suggested Actions: Determine whether or not you need to subpoena your own witnesses If you are relying on the State’s witnesses, be prepared to draw out your record on cross-examination 5 In
the Interest of T.A, 2003 SD 56, 663 N.W.2d 225
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Other Considerations Ethical Obligations when representing clients with “Diminished Capacity” See South Dakota Rules of Professional Conduct 1.14 (comment 1) You have an ethical obligation to represent your client’s wishes and allow him or her to participate to the extent possible in making decisions
SDCL 26-7A-19.1: following the temporary custody hearing there is an ongoing relative placement preference Being active and staying engaged with the file may help you identify possible relative placement options for your client
SDCL 26-8A-21 requires DSS make reasonable efforts to return the child to his or her parents Look to the DSS file and discovery materials as well as your own investigation to make a determination as to whether you believe reasonable efforts have been made When ICWA is involved the standard is heightened and DSS must demonstrate active efforts
ICPC considerations: Placement of a child with an out-of-state relative or fictive kin can be a long and tedious process South Dakota DSS requires that prospective out-of-state placements undergo foster care licensure Some states such as Texas will not provide the ICPC home study and have special requirements
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Conclusion This is more that just a file, this is the story of a family Your job is to speak for a child that may not otherwise be able to speak for themselves Be cognizant of the way you choose to phrase things or what you say on the record Your client is depending on you to look out for his or her best interest and to help ensure his or her health, safety, and welfare are the top priority at all times It’s your job, do it well! If you have questions or concerns please do not hesitate to reach out to me M.mccauleyloof@gmail.com
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Citations: 1. SDCL 26-8A-2 2. South Dakota Guidelines for Judicial Process in Child Abuse and Neglect Cases, see page 67 3. SDCL 26-8A-26 4. SDCL 19-19-806.2 and SDCL 19-19-807 (residual exception), See also, Matter of J.B., 2008 SD 80, 755 N.W.2d 496, and In the Matter of S.A., A.A., E.A., and A.A., 2005 SD 120, 708 N.W.2d 673 5. In the Interest of T.A., 2003 SD 56, 663 N.W.2d 225 6. SDCL 26-7A-19.1 7. SDCL 26-8A-21
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Supplemental Materials Guidelines: https://ujs.sd.gov/media/pubs/SDGuidelinesAandNProceedings.pdf
In the Interest of T.A. 2003 S.D. 56: http://ujs.sd.gov/Supreme_Court/opiniondetail.aspx?ID=1136
Bureau of Indian Affairs Guidelines: https://www.federalregister.gov/documents/2015/02/25/2015-03925/guidelinesfor-state-courts-and-agencies-in-indian-child-custody-proceedings
SD UJS A & N Training Video (mandatory for anyone appointed to represent child/ren in abuse and neglect proceedings): http://ujsatv.sd.gov/
Abused or Neglected Child Defined: SDCL 26-8A-2
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Questions?
Vicki Burger Vicki has a Bachelor’s degree in Art, Science and Social Work from the University of Sioux Falls. She is a licensed Social Worker with the State of South Dakota and has been with Child Protection Services for over 20 years. During that time she has been a case manager, investigator, completed assessments, intakes and court work and has been in the supervisory role. Vicki later was a District Supervisor and presently is the Regional Manager and has been in that capacity for over 10 years.
State Bar’s Juvenile Law
Presented by: Vicki Burger BSW, LSW Regional Manager Department of Social Services Child Protection Services 1
Mission Statement Strengthening and supporting individuals and families by promoting cost effective and comprehensive services in connection with our partners that foster independent and healthy families
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Child Protection Services
• Child Protection Services responds to reports of child maltreatment in order to assess danger and threats of safety to children residing with their family. • Child Protection Services strives to assure the safety, permanency and well-being of all children served by the agency.
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Types of Abuse and Neglect
• • • •
Physical Abuse Physical Neglect Sexual Abuse Emotional Maltreatment
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South Dakota Codified Laws Chapters 26-7A, 26-8A • South Dakota Codified Law 26-8A-2 Definition • South Dakota Codified Law 26-8A-3 Who Reports • South Dakota Codified Law 26-8A-8 Who To Report To • South Dakota Codified Law 26-8A-9 Who Investigates • South Dakota Codified Law 26-8A-13 Confidentiality • South Dakota Codified Law 26-8A-14 Immunity
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Abused and Neglected Child Defined 26-8A-2 • Whose parent, guardian, or custodian has abandoned the child or has subjected the child to mistreatment or abuse. • Who lacks proper parental care through the actions or omissions of the parent, guardian, or custodian. • Whose environment is injurious to his welfare. • Whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, supervision, education, medical care or any other care necessary for his health, guidance, or well-being or • Who is homeless, without proper care, or not domiciled with his parent, guardian, or custodian through no fault of his parent, guardian, or custodian. 6
Codified Law Continued
• Who is threatened with substantial harm. • Who has sustained emotional harm or mental injury as indicated by an injury to his intellectual or psychological capacity evidenced by an observable and substantial impairment in his ability to function within his normal range of performance and behavior, with due regard for his culture. • Who is subject to sexual abuse, sexual molestation or sexual exploitation by his parent, guardian, custodian or any other person responsible for his care. • Who was subject to prenatal exposure to abusive use of alcohol, marijuana or any controlled drug or substance not lawfully prescribed by a practitioner as authorized by chapters 22-42 and 34-20B. • SB 105 7
Abused and Neglected Child Defined 26-8A-2
• Whose parent, guardian, or custodian knowingly exposes the child to an environment that is being used for the manufacture, use or distribution of methamphetamine or any other unlawfully manufactured controlled drug or substance.
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Mandatory Reporters
• Any physician, dentist, doctor of osteopathy, chiropractor, optometrist, emergency medical technician, paramedic, mental health professional or counselor, podiatrist, psychologist, religious healing practitioner, social worker, hospital intern or resident, parole or court services officer, law enforcement officer, teacher, school counselor, school official, nurse, licensed or registered child welfare provider, employee or volunteer of a domestic abuse shelter, employee or volunteer of a child advocacy organization or child welfare service provider, chemical dependency.
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Mandatory Reporters • Reason to suspect abuse or neglect must report • Immune from liability • Failure to report • Anonymous reporters • Confidentiality • What to ask or not ask a child • Training http://dss.sd.gov/childprotection/ 10
Intake Process • In 2015, Child Protection Services initiated a centralized intake process. • Twelve Intake Specialists throughout the state utilize a specialized phone system in which the calls are routed through. • 1-877-244-0864 from 8-5 PM, Monday-Friday • Emergency Response from 5 PM-8 AM and on weekends • Reports are screened out, assigned or referred to another agency. 11
Screening • • • • • •
Review of the Request for Service (RFS) Collateral Contacts Screening guideline Cross reporting to law enforcement Present and impending danger Determining Prioritization of CPS Response
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Initial Family Assessment • Response time of initial contact determined • Initial Family Assessment process • Interviews • Present Danger Plans • Assessment and findings • Safety threats • Impending danger • Potential outcomes: • In-Home Services with services by CPS and community resources • Petition filed - placement • Case closed and refer to services.
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PRESENT DANGER Situations where the following three criteria are present: 1. Immediate- dangerous family condition, child condition, individual behavior or acts or family circumstances are active and operating 2. Significant-conditions, behaviors or acts are exaggerated, out of control, or extreme 3. Clearly observable- you can see and experience the conditions These are situations where a child must be removed from the situation to be safe
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What we are seeing • Children in danger • Abuse and neglect • Children exposed to illegal drug activity • Violence • Incarceration of parents • Statistics and tracking
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Placement • • •
Child Protection Services does not have authority to remove children Law Enforcement or court order placing children in the custody of Child Protection Services Placement with relatives •
• • •
Expedited home studies
Fictive kin Foster care Group care and residential treatment
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Ongoing • • • • •
In Home Services Safety Planning Placement cases with custody/court Conditions for Return Protective Capacity Assessments Behavioral Changes • Case planning and services to parents and children • Discharge Outcomes •
Sioux Falls outcomes
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When children are removed • DSS works towards reunification for 12 months. (72% of children returned within first 12 months statewide) • Case Planning- Protective Capacity Assessment • Following 12 months, DSS is required to have a permanent plan for the child. •
Compelling reasons
• 15/22 months • Guardianship, placement with a relative, and transition to adulthood. • Termination of parental rights may be an option in order to pursue adoption • ICWA
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Multidisciplinary • • • • • • • • • • • •
Law Enforcement State’s Attorney Child Attorney Parent’s Attorney Courts CASA Child Advocacy Centers (Child’s Voice) Schools Medical Placement resources Mental Health Drug and Alcohol
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Foster One http://fosteronesd.org/ Thank you!
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Amanda Liebl, MA
Amanda Liebl, MA is a Forensic Interviewer with the child advocacy center, Child’s Voice, in Sioux Falls, SD. As a forensic interviewer at Child’s Voice, Ms. Liebl gathers a medical history in order for the provider to diagnose and treat the children when there is a concern of child maltreatment. She speaks with children regarding sexual abuse, physical abuse, witness to violence, drug endangerment, neglect, emotional maltreatment, and other concerns. Ms. Liebl provides expert testimony in child maltreatment cases, conducts trainings with multidisciplinary professionals, and provides education to community members. Ms. Liebl received her B.S. in Psychology and her M.A. in Community Agency Counseling from the University of South Dakota.
Children in the Courtroom. Understanding Children, Language, and Trauma Amanda Liebl, MA Forensic Interviewer, Sanford Health Child’s Voice Objectives • • • •
Review characteristics of language by age groups Understand the principles of children and language Discuss possible problems to look out for in your questioning Offer tips on talking with children who have experienced trauma
Age Group Characteristics Handbook on Questioning Children: A Linguistic Perspective (3rd Edition), by Anne Graffam Walker, 2013 ➢ Preschoolers Use and interpret language very literally Concrete vs. abstract Trouble collecting information into adult-like categories Utilize words for time, distance, kinship, size, etc. long before they understand the
meaning Have difficulty with pronoun reference, or tagging Do best with simple sentences of subject, verb, object Tend to focus on only one aspect of a situation or question at a time Do not organize events in their mind in adult ways Often leave out setting, descriptions, motivation, chronology, and emotions Still in the process of acquiring language Usually do not know or will not tell you if they do not understand Believe in general that adults speak the truth, are sincere, and would not trick them ➢ School Age (7 – 10 year olds) Still may have difficulty in handling abstract concepts Still have problems processing complex questions and verb phrases Still make errors with passives, the difference between “ask” and “tell,” and with pronoun reference Still easily confused by complex negation and multiple negatives Still not mature at organizing in an adult-satisfactory way the details of narratives Still unequipped to deal with adult insincerity like sarcasm, irony, etc May still believe that adults, in general, speak the truth ➢ Adolescents (11 – 18 year olds) May or may not have acquired adult narrative skill Do not understand time as both a historical concept and a day-to-day concept that affects their lives Still have difficulty with complex negation Often confused by linguistic ambiguity Likely to lose track of long, complex questions Reluctant to ask for clarification of a question or acknowledge they do not understand Some adolescents may remain stuck in the school age (under-educated, underparented, unattached, developmentally delayed)
Research shows adolescent brains are not completely developed until well into the mid-20’s ➢ Tips for Interviewing Teens Respect the adolescent Be patient and pleasant Do not make assumptions about a teen’s ability Keep questions simple and concrete Ask narrative inviting questions as much as possible Frame first. Ask second. Who, what, and where can give you when information Be honest and genuine
Principles
We do not question “children” Language is shaped by experience Children and adults do not speak the same language Inconsistency in children’s statements is normal Children are very literal in their early approach to language Adult-like use of language does not necessarily reflect adult-like linguistic or cognitive capabilities Framing is good The ability to recite a list is not the same as the ability to understand its contents Children are not born with the ability to give adult-like accounts of their personal experiences Some families talk to each other; some families do not Culture matters Very young children can be competent witnesses in a court of law
What to Look out for in Questioning Children
Prepositions Pronouns and pointing words Problems can result in misunderstandings, which can affect perception of a child’s credibility Solution: • • •
Keep questions short Replace indexicals frequently with specific nouns Make conscious effort to frequently ensure child and adult are both talking about the same thing
Legal words and jargon Complex sentences Putting two or more questions into one Asking “Do you recall/remember” question followed by proposition Asking questions that begin with, “I suggest to you,” “I believe you told us,” “Isn’t it a fact that…” Asking restricted choice questions and limiting free narrative Open ended questions need to be the start of interview or line of questioning Children do not think of offering all details when providing free narrative Once a focused question has been used, it should be followed by an open ended question to obtain more information
Shifting topics suddenly, especially if it is a shift between the here-and-now and the there-and-then Asking children about time, dates, number, height, weight, etc Why questions
Why Might There be Inconsistencies in Children’s Testimony?
Children may be both speaking and responding to your questions in a literal way Children may change their answers under repeated questioning Different questions by different questioners in different surroundings may elicit different details Children can misapply words that are only tentatively under their command Incomplete acquisition of a linguistic rule can lead a questioner to believe that a child’s answers are inconsistent with the truth Children learn early to be cooperative conversationalists Adult assumptions about what children mean can create inconsistencies that don’t exist Failure to ask follow-up questions Taking at face value children’s responses to “concept” questions The reason that underlies all of the above: Children are not adults
Tips for Talking with Children who Have Experienced Trauma
Setting Children have limited legal knowledge. Developmentally sensitive explanations that demystify the legal setting and focus the child’s attention can improve productivity Wh questions elicit recall memory Yes/no and forced choice questions elicit recognition memory Interviewer Demeanor Maltreated children may have more difficulty establishing rapport with professionals that other children with mental health problems Tips to establish rapport:
Effective rapport tools differ for each child and age group Have an age appropriate introduction planned
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Be genuine, warm, friendly, playful, sensitive, tactful, attentive, etc
Children in the Courtroom Understanding Children, Language, and Trauma Amanda Liebl, MA Forensic Interviewer Child’s Voice Child Advocacy Center
Objectives •
Review characteristics of language by age groups
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Understand the principles of children and language
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Discuss possible problems to look out for in your questioning
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Offer tips on talking with children
Fast Facts •
Children as young as 2 and 3 can recall and report past experiences accurately
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Children as young as 3 have testified competently and credibly in court
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Even very young children can tell us what they know if we ask them the right questions in the right way
Forensic Interview •
A forensic interview of a child is a developmentally sensitive and legally sound method of gathering factual information regarding allegations of abuse or exposure to violence. This interview is conducted by a competently trained, neutral professional utilizing research and practice-informed techniques as part of a larger investigative process. (Newlin, C. V. et al (2015). Child Forensic Interviewing: Best Practices)
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Sensitive to the child’s developmental level
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Documented
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Information provided by the child
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MDT approach to investigation
Age Group Characteristics Handbook on Questioning Children: A Linguistic Perspective (3rd Edition), by Anne Graffam Walker, 2013
Preschoolers •
Use and interpret language very literally
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Concrete vs. abstract
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Trouble collecting information into adult-like categories
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Utilize words for time, distance, kinship, size, etc. long before they understand the meaning
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Define words in the simplest, action-oriented ways
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Have difficulty with pronoun reference, or tagging
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Have difficulty with negatives
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May supply an answer to a question, even if they have no knowledge
Preschoolers •
Do best with simple sentences of subject, verb, object
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Tend to focus on only one aspect of a situation or question at a time
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Do not organize events in their mind in adult ways
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Often leave out setting, descriptions, motivation, chronology, and emotions
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Still in the process of acquiring language
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Usually do not know or will not tell you if they do not understand
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Believe in general that adults speak the truth, are sincere, and would not trick them
School Age (7 – 10 year olds) •
Still may have difficulty in handling abstract concepts
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Still have problems processing complex questions and verb phrases Ex. Were you to have been taken to school that day?
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Still make errors with passives, the difference between “ask” and “tell,” and with pronoun reference
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Still easily confused by complex negation and multiple negatives “You don’t deny you did it, do you?”
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Still not mature at organizing in an adult-satisfactory way the details of narratives
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Still unequipped to deal with adult insincerity like sarcasm, irony, etc
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May still believe that adults, in general, speak the truth
Adolescents (11 – 18 year olds) •
May or may not have acquired adult narrative skill
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Do not understand time as both a historical concept and a day-to-day concept that affects their lives Here and now
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Still have difficulty with complex negation Problem continues into adulthood for many
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Often confused by linguistic ambiguity
Newspaper headlines, idioms, proverbs, metaphors
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Likely to lose track of long, complex questions
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Reluctant to ask for clarification of a question or acknowledge they do not understand
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Some adolescents may remain stuck in the school age (under-educated, under-parented, unattached, developmentally delayed
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Research shows adolescent brains are not completely developed until well into the mid-20’s
Tips for Interviewing Teens •
Respect the adolescent.
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Be patient and pleasant, not creepy.
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Do not make assumptions about a teen’s ability.
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Keep questions simple and concrete.
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Ask narrative inviting questions as much as possible.
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Frame first. Ask second.
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Who, what, and where can give you when information
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You are not the teen’s parent. Do not act like it.
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You are not the teen’s peer. Do not act like it.
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Be honest and genuine.
Principles
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We do not question “children”
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Language is shaped by experience
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Children and adults do not speak the same language
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Language is not an all-or-nothing affair
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Inconsistency in children’s statements is normal
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Children are very literal in their early approach to language
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Adult-like use of language does not necessarily reflect adult-like linguistic or cognitive capabilities
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Young children in particular have difficulty attending to more than one or two things at once. “Do you recall talking to her on the Sunday after they found – discovered something had happened to Doug and asking her, “ Do you know Mark?” and then saying, “That is who did it.” Do you remember telling her that? Question asked of a 5 year old witness during a murder trial
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Pausing is productive
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Children will not necessarily tell you that they do not understand you
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Framing is good
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Children’s responses to your questions are not necessarily answers to your questions
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The ability to recite a list is not the same as the ability to understand its contents
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Children are not born with the ability to give adult-like accounts of their personal experiences
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Some families talk to each other; some families do not
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Familiarity matters
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Culture matters
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Very young children can be competent witnesses in a court of law
Problems to Look out for in Questioning
Prepositions •
Command of prepositions is essential in order to talk accurately about “where”
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Children begin using prepositions by age 1 or 2
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Most, but not all, prepositions are acquired by the age of 5 ½
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“Before” and “after” present particular problems for preschoolers and may still not be mastered by children at the age of 6 ½
Pronouns and Pointing Words • •
Indexicals – children have basic capabilities in this by age 3 or 4, but gaining full mastery is a slow process Being able to use pointing words accurately requires abilities to understand speech roles, how people fit into them, and how to gauge what the listener knows
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Keeping track of indexical words within one question or across a series of questions can be difficult even for adults
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Problems can result in misunderstandings, which can affect perception of a child’s credibility
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Solution:
Keep questions short Replace indexicals frequently with specific nouns Make conscious effort to frequently ensure child and adult are both talking about the same thing
Some Specific Words •
Ahead of/behind in reference to time
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Always/never – absolutes
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Any
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Ask/tell – command vs. invitation
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Before/after
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Big
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Different/Same
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Let/Make
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Touch
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Yesterday/Today/Tomorrow
Questioning Problems •
Legal words and jargon
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Complex sentences In one study, children ages 5 ½ - 7 ½ asked for clarification of only 1% of the complex questions they were asked (Carter, Bottoms, & Levine, 1996)
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Putting two or more questions into one And you saw this knife for the first time when and where?
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Asking “Do you recall/remember” question followed by proposition
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Asking questions that begin with, “I suggest to you,” “I believe you told us,” “Isn’t it a fact that…” They are wholly inappropriate for children
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Asking restricted choice questions and limiting free narrative
Hourglass Effect •
•
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Open ended questions need to be the start of interview or line of questioning Children do not think of offering all details when providing free narrative Once a focused question has been used, it should be followed by an open ended question to obtain more information
Questioning Problems •
Shifting topics suddenly, especially if it is a shift between the hereand-now and the there-and-then
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Asking children about time, dates, number, height, weight, etc
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Why questions
Why are There Inconsistencies in Children’s Testimony? •
Children may be both speaking and responding to your questions in a literal way
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Children may change their answers under repeated questioning
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Different questions by different questioners in different surroundings may elicit different details
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Children can misapply words that are only tentatively under their command
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Incomplete acquisition of a linguistic rule can lead a questioner to believe that a child’s answers are inconsistent with the truth
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Children learn early to be cooperative conversationalists I take a turn, you take a turn. I ask a question, you give an answer.
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Adult assumptions about what children mean can create inconsistencies that don’t exist
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Failure to ask follow-up questions
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Taking at face value children’s responses to “concept” questions
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The reason that underlies all of the above:
Children are not adults
Tips for Talking With Children
Setting •
Age appropriate, private, child-friendly setting with minimal distractions
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Private interviews eliminate the appearance of cross-contamination from others who may have a vested interest in the outcome
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Parent’s presence could decrease stress for some children, while increase stress of other children
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Distractions require children to divide their attention
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Children have limited legal knowledge. Developmentally sensitive explanations that demystify the legal setting and focus the child’s attention can improve productivity
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Rapport
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Wh questions elicit recall memory
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Yes/no and forced choice questions elicit recognition memory
Interviewer Demeanor •
Most successful when provide a supportive and nonsuggestive atmosphere Helps children be more resistant to misleading questions Reduces errors on nonsuggestive questions Improves accuracy without contaminating children’s account
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Crucial for interviewers to have an objective and neutral approach
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Curious about what children have to say, rather than presumptive
Interviewer Demeanor •
Supportive:
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Warm and friendly approach Positive feedback on neutral issues Smiling Using the child’s first name
Unsupportive: Inattention Frustration Criticism
Rapport •
Maltreated children may have more difficulty establishing rapport with professionals that other children with mental health problems
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Tips to establish rapport: Be genuine, warm, friendly, playful, sensitive, tactful, attentive, etc
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Effective rapport tools differ for each child and age group
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Have an age appropriate introduction planned
Thank you! amanda.liebl@sanfordhealth.org
HON. DOUGLAS E. HOFFMAN The Hon. Douglas E. Hoffman took office as a Circuit Court Judge in South Dakota’s Second Judicial Circuit on August 17, 2007. Prior to his appointment, Judge Hoffman was U.S. District Court Law Clerk, and then a general practitioner in Sioux Falls for 20 years, and included in his practice civil, criminal and domestic cases, as well as administrative law and appeals. He was admitted to practice before the South Dakota Supreme Court, The United States Courts of Appeals for the Eighth and the Federal Circuits, and the United States Supreme Court. During the final 8 years of his practice, Hoffman also served as a mediator and arbitrator, and received training therein at Hamline University in St. Paul. Judge Hoffman has taught courses in Health Care Law and Criminal Justice as an Adjunct Instructor at the University of Sioux Falls since 2007. Hoffman received his B.A. in Philosophy from the University of Iowa in 1982 and his J.D. from the University of South Dakota School of Law in 1985. Judge Hoffman’s Wife, Gretchen, is a Professor of Psychology at the University of Sioux Falls and they have two children.
KASEY L. OLIVIER Kasey is a 2012 Honor graduate from the University of South Dakota School of Law. Originally from Jackson, Minnesota, Kasey received a Bachelor of Science in Mass Communications, Public Relations, and Speech Communication from Minnesota State University, Mankato. After completing her undergraduate studies, Kasey moved to South Dakota to pursue a law degree. While in law school, Kasey was a member of the South Dakota Law Review, both as a published student author and editor. After Law School, Kasey clerked for the Second Judicial Circuit in Sioux Falls, South Dakota, before joining the Johnson, Heidepriem law firm in 2013. In 2015, Kasey helped found Heidepriem, Purtell and Siegel, LLP, where she became partner in March 2015. Kasey was named a rising star by Super Lawyers in 2017. She is also listed as a top 40 under 40 in the area of litigation as a trial attorney and as a top 25 attorney in the area of Mass Tort law by the National Trial Lawyers Association. Membership to the Top 40 is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile. The American Institute of Personal Injury Attorneys has recognized Kasey as a Top Ten Female Litigator in the realm of client satisfaction. Kasey currently serves on the Board of Governors for the South Dakota Trial Lawyers Association, the Admissions Committee for the University of South Dakota, School of Law, and as the Second Circuit Bar Association President.