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Home > Working with the Courts in Child Protection > Chapter 5: The Criminal Court Process
Working with the Courts in Child Protection
User Manual Series (2006)
Chapter 5 Conduct that rises to the level of child abuse or neglect may constitute a crime, depending on State law and the circumstances of the case; not all criminal acts, however, are prosecuted. Some prosecutors are less zealous than others, or they may believe that all but the most serious of intra-family offenses are best addressed in the juvenile court. Other reasons to forgo prosecution are that it may interfere with rehabilitating families or be traumatic for the children, particularly if they have to testify. Cases typically prosecuted include sex offenses or those that result in the death of, or serious injury to, a child. Child protective services (CPS) caseworkers may have information about the family that is critical to the criminal court proceeding. Caseworkers always should determine whether either parent or any potential caretaker in a child abuse and neglect case has a criminal record or pending criminal charges. This information can inform a caseworker's assessment of potential risk to the child and enhance case planning and service coordination activities. While the criminal court process may vary across jurisdictions, key stages include:
Arrest, Bail, and Other Conditions of Release Criminal prosecutions most commonly begin with an arrest. Defendants then are brought before a judicial officer (a judge, magistrate, or commissioner) who informs them of the charges against them and determines the conditions of their release pending trial. The defendant will be notified of the conditions that must be met to be released from police custody before the trial. Defendants with stable residence and employment histories and no significant prior records often are released on their own recognizance or with a written promise to appear at subsequent court dates. For defendants who seem less reliable, a cash bond may be required. Defendants can post the full amount of the bond in cash or property or secure a bondsman for a percentage of that amount. If the defendant flees, the bondsman is obligated to pay the full amount of the bond. The judge also has the discretion to impose other conditions of release, including the defendant having no contact with the child or other parent or not returning to the residence. CPS caseworkers can assist with protecting the child and the non-offending parent by reporting to the prosecutor any violation of a "no contact" or "stay away" condition. In such cases, the caseworker can encourage the prosecutor to ask the criminal court judge to revoke the defendant's bond and return him to jail. Preliminary Hearings The purpose of a preliminary hearing is to determine whether there is probable cause to believe that the defendant committed the alleged offense and that he should be tried on that charge. If the judge finds no probable cause, the case will be dismissed. If the judge finds probable cause, the case will be transferred to the trial court for resolution. Witnesses sometimes are called to testify and are cross-examined at preliminary hearings. The CPS caseworker or the child may be among them. As a general rule, CPS caseworkers should discourage having the child testify, except possibly in cases where there is no other way to establish probable cause. Because they may be asked to recount painful memories in a public and contentious environment, children may find testifying in court to be traumatic and uncomfortable. (See Chapter 7, Going to Court, for more information on children's testimony.) In some States, evidence of criminal conduct by the defendant is presented at a preliminary hearing to a grand jury instead of a judge. The grand jury then determines whether the evidence is sufficient to constitute probable cause. If so, the grand jury will issue an indictment that also puts the case before the trial court. Only the prosecutor and State's witnesses, usually the investigating law enforcement officer, appear before the grand jury. It is unlikely that either the CPS caseworker or a child would be asked to testify. Neither the defendant nor the defense attorney has the right to be present at that proceeding. Discovery Discovery refers to the process of obtaining information about the charge from the opposing party and, at times, other sources. It is less accessible and less extensively used in criminal cases than in civil actions, including child abuse and neglect proceedings, due to more stringent legal requirements. Defendants in some States, however, may be entitled to access CPS records, particularly if they contain information or evidence that may be helpful to their defense. The identity of reporters of child maltreatment, however, still may be withheld. Plea Bargaining Plea bargaining is to the criminal process what settlements are to the juvenile court process. These negotiated resolutions conclude the majority of both types of cases. Without them, courts could not reach all the cases to be tried on a timely basis. Plea bargaining, which results in avoiding trial, has the added benefit in child abuse and neglect cases of eliminating the need for the child to testify and of speeding the resolution of the case, both of which relieve the child's anxiety. Nevertheless, there also may be negative consequences to a plea bargain. Depending on the sentence, the child victim may feel betrayed, disbelieved, or unsafe. In addition, the public may perceive that child maltreatment is not taken as seriously as other crimes. Trial If no plea bargain is reached, the case goes to trial. In criminal trials, the rules of evidence are applied strictly, and the prosecutor has a greater burden of proof. In order to convict, the jurors must unanimously find "beyond a reasonable doubt" that the defendant committed the alleged offense. This is a much higher burden of proof than the "clear and convincing evidence" standard in termination of parental rights trials in some States' child abuse and neglect actions. It is higher still than the "preponderance or greater weight of the evidence" standard in civil cases generally and in child abuse and neglect cases in some States. CPS caseworkers should know if any criminal charges were filed stemming from the facts and circumstances related to their child abuse and neglect cases. The caseworker will want to establish and to maintain contact with the prosecutor responsible for those charges to know when events in the case are scheduled, whether the child may be called as a witness, or the terms of any plea offer. The prosecutor needs to be informed of the status of the child abuse and neglect case, the case plan, and how the prosecution can benefit from that plan. To ensure that provisions important to the child and the case plan are considered, the caseworker should ask to participate in any bond hearing or plea negotiations and in the sentencing process. However, the criminal court judge may operate independently of the juvenile court and may give little or no weight to what the caseworker requests. The criminal court case may be concluded well after the disposition hearing in the child abuse and neglect case, and its outcome can be inconsistent with the case plan and the best resolution of the child abuse and neglect case. The opposite also can be true, and the criminal sentence can augment and enhance the case plan and the prospects for a positive outcome. In communities where the same prosecutor represents the public interest in both criminal and child abuse and neglect cases, there is greater likelihood of a coordinated approach to resolving both matters. In communities where different offices are responsible for the two types of cases, the CPS caseworker should do as much as possible to ensure that the outcome in criminal court complements and supports the case plan in the juvenile case. The desired court outcomes might vary from case to case. For example, in a case where the mother's boyfriend has been abusive to her and the child, the caseworker may advocate that he be incarcerated for the maximum period possible. On the other hand, if he is an important figure in the child's life, has been participating successfully in a batterers' intervention program, is the principal breadwinner for the family, and the plan is reunification of all family members, then a lengthy sentence would be contrary to the case plan. A suspended sentence and probation, with conditions consistent with the case plan, could enhance prospects for the plan's success. This scenario would not impose a fine or other financial burdens that would interfere with the defendant's ability to support the family. Frequently, a parent or other caretaker in a child abuse and neglect case will be on probation for some unrelated criminal offense (e.g., a drug charge) and be required as a condition of probation to complete a drug treatment program successfully. The threat of incarceration can be a powerful motivator for overcoming a substance abuse habit or for changing other behaviors. The caseworker will want to establish and to maintain contact with the probation officer to stay abreast of the defendant's compliance with the conditions of probation. This level of coordination of the two processes is uncommon, but positive results can be realized when the CPS caseworker establishes a good working relationship with the probation officer. Communicating with the prosecutor and the probation officer in criminal cases involving the parents or other caretakers of children who have been maltreated is an important role for CPS caseworkers and other involved service providers. Sharing information and coordinating agency efforts with what happens in criminal court to achieve a safe, permanent home for children can produce beneficial results in a CPS case.
This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway. |
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