It is fairly unusual for a dependency to be adjudicated at the Preliminary Protective Hearing given that hearing's limited purposes⁽¹⁾. Occasionally, but not very often, one or both parents may admit the allegations in the petition at the PPH. If that happens, the children will be adjudicated dependent and the court will hold a dependency disposition hearing. On extremely rare occasions, the State might dismiss the petition outright.

However, in most instances, parents will - at least initially - deny the allegations in the petition and ask that the matter be scheduled for a dependency adjudicationhearing. A dependency is a fact finding trial over the allegations in the dependency petition.

Before scheduling a dependency adjudication, the Court must hold a settlement conference or a mediation. The purpose of the settlement conference is to see if the parties can agree on a mutually acceptable resolution of the petition and save the court and the parties from an adversarial trial. The general theory is that resolution by agreement is both more user friendly and will, in the long run, have a better chance of success in reuniting the family.⁽²⁾

The Juvenile Court customarily schedules the settlement conference about 30 days after the Preliminary Planning Hearing. The fact finding hearing will usually take place approximately 30 to 60 days later.⁽³⁾

Interestingly, it often does not take much of a compromise to settle a dependency adjudication. Many parents instinctively recognize that their family needs help but may disagree with how the family circumstances are described in the petition. Some parents may simply need to "save face". Often, parents are willing to accept the allegations in the petition if they can add some comment of their own - sort of "guilty with an explanation."

We should not underestimate the power of words. The way an allegation is phrased can have a profound impact on how the allegation is received. Words are powerful. They can evoke strong emotional reactions.

The upside of the power of words is that a slight change of language can sometimes make all the difference to a litigant. A parent may find language that has been gently tweaked perfectly acceptable. Even if the change in wording would have little legal impact, the change could have an important emotional distinction for the parent. Of course, sometimes the parties have more fundamental differences making settlement a more difficult process.

A settlement conference is a judge-aided discussion among the parties in open court but without a stenographic record. Presumably, in the absence of a record, the parties are more free to openly discuss disputed issues.

In some cases, the settlement conference is the first opportunity a parent has had to personally speak to the Judge about the allegations in the petition. Up to this point, the lawyers have done all the talking in Court. The mere fact that the parent can "say something" to a Judge who is listening judge can, in an of itself, be a significantly cathartic event. Having a chance to speak can sometimes allow the parent to admit the petition and "move on" to the work of reunification.

The child's attorney can - depending on the child-client's position - help facilitate voluntary compromise among the adult parties. A child's attorney can often play a significant role in brokering a settlement if that serves the child client's interests. A suggestion coming from the child's attorney may be more acceptable than the same suggestion coming from CPS or the parents. If you feel that settlement is in your clients interest, there is nothing wrong with initiating settlement discussions among the parties even before the settlement conference.

Often the attorneys for the state and for the parents get together prior to the settlement conference to try to reach a compromise. Nearly as often, the parties forget to include the children's attorneys in the discussion. While children's attorneys have little control over the ultimate outcome, our input is necessary -- perhaps even mandatory -- since any resolution will have a direct impact on our clients. We need to stay on top of the situation to make sure that we are included in the discussion loop.

The format of a settlement conference is pretty straightforward. At least 24 hours in advance of the conference, each side is required to submit a short [usually one or two pages] confidential settlement memorandum to the judge. The memorandum should outline the party's position and parameters of acceptable settlement. The memo is submitted directly to the judge, and, unlike any other court document, the settlement memorandum is submitted as a sanctioned ex-parte communication.

The ex parte confidential memorandum is to assist the judge in determining where the parties are coming from without requiring the parties to divulge their negotiation strategy to the other side. The judge can use the confidential memoranda to see if there is some common ground that exists in fact but has eluded the parties.

From the child's perspective, the confidential memorandum is a not only an opportunity to express the child's legal position, it is also an opportunity offer the judge some insight into the child's thinking without having to disclose the child's thoughts to the parents. In any court proceeding, all the other parties are entitled to a copy of any communication between a litigant and the court. There are no private communications.

Some children would rather keep silent and tell the judge nothing than have to disclose his or her opinion to a parent. A settlement memorandum can be a rare opportunity to "speak" privately to the Judge.⁽⁴⁾

Thus, it would not be inappropriate to use the settlement memorandum to address a child's ambivalent feelings about her parents or the child's systemic confusion or to offer a comment, from the child's perspective, about placement issues, services issues or other needs.

On the other hand it can often be in our clients' interests to be open about our settlement position. This openness can help the parents' and state's attorneys assess their respective positions and perhaps facilitate an settlement helpful to our clients. In those instances, and with our clients' permission, we can send copies of our confidential memoranda to the other parties as well as to the court.

The settlement memorandum should state our client's position, if any on:

1. Whether or not there should be a dependency.
2. Any changes in the allegations that would be acceptable to our client.
3. Any additions to the allegations that our client wishes to be included.
4. Dispositional recommendations, if appropriate.

The settlement conference, like all other court hearings, is an event at which our child clients are entitled to attend. When discussing possible attendance with our client, it may be a good idea to ask our client to consider whether his or her attendance will help or will stifle her parents' ability to make a compromise.

Although theoretically, all settlement possibilities are before the Court - including dismissal of the petition. However, practically speaking, it will be a cold day in Yuma before CPS would compromise on whether or not there will be a threshold finding of dependency. Mostly settlement conferences are about modifying the allegations in the petition - not about dismissing it outright.

The key to a functioning settlement conference is to listen and to be creative. By listening carefully, we can figure out what the parents and what CPS really want. In a good settlement, both sides can get what they want. If we can "hear" the common ground, then we can help them achieve their goals consistent with our client's interests.

The judge is present to help facilitate a voluntary resolution of the petition. The judge is not present to arbitrate or make decisions. Rather the judge will try to assist the parties in reaching a voluntary accord. The role of the judge in a settlement conference will vary depending on the Judge and/or the underlying case. Some judges may be very proactive in encouraging settlement. Others may be more hands off.

A more active judge might offer practical suggestions for compromise. The judge may even perform a little arm twisting by offering his or her analysis of the import of certain alleged facts. For example, a judge may tell the parent's attorney, "even if I found that explanation to be credible, I would still find a dependency." Or the Judge might tell the attorney general that, "unless you can prove that fact, there may be no dependency."

Other judges may leave it up to the parties to see if settlement is possible - with the judge standing by as a resource if needed.

Most discussions will be in a roundtable format with all the parties present. However, some Judges like to meet with the parties separately as a means of facilitating compromise. As in other areas, it is helpful to know your Judge's preferences.

What is a good settlement for our client?
Obviously, any settlement that will enable our client's long term goal to be met is a favorable settlement. If our client wants to go home, a settlement that realistically enhances that possibility is a good settlement. If our client wants be protected from an abuser, a settlement that clearly establishes the abuse would be preferred.

Whatever our clients position, the settlement should make it easier for our client's goal to be met. Sometimes that can be tricky. For example, if our client wants to return home, a settlement that creates a minimal dependency would probably make it easier for the parent to succeed. A parent is more likely to succeed in following the case plan where there are fewer identifiable problems to overcome.

On the other hand, if real problems exist and they are not identified in the settlement, CPS may devise an inappropriate case plan that will not address the poor parental behaviors impacting on the day to day life of our client. Settlement is a situation where our clients need good advice and counsel.

If the parties reach a settlement at the conference, it is the court's custom to try to wrap it up right there and then. If the settlement allows the parent to admit to different language from that contained in the original petition, the petition will have to be amended. Simple amendments may actually be handwritten on the original petition. More likely, the amendments will be read onto the court record and then memorialized at a later date by filing of an Amended Petition. ⁽⁵⁾

If the settlement is acceptable to all the parties and to the Judge, the Judge will want to wrap things up with an admission by the parents to the Amended Petition. If the admission is accepted by the Court, the Court will adjudicate the child as dependent and will schedule a dependency disposition within thirty days. If no settlement can be reached, the Judge will schedule the matter for a trial.

ADMISSIONS AND SURRENDERS
Before the Judge can accept an admission, the Judge must advise the parent of his or her trial rights and of the consequences of an admission.⁽⁶⁾ The Judge must also determine that the admission involves a knowing and voluntary waiver of those rights.

By knowing, we mean that the parent waiving rights understands those rights being waived - i.e. that there is a right to a trial; that the petitioner must prove the allegations, that there are possible defenses, etc. By voluntary, we mean that the parent waiving rights was not coerced and/or not under the influence of drugs, alcohol or medication such that the parent could not think clearly.

In order to protect the rights of the party making the waiver, the Judge will take a few moments to ask that parent some questions. Most Judges will ask if the parent's attorney explained the parent's trial rights. They may check to see if the person can read, write and understand English -- just to be sure that there are no language misunderstandings.

If for any reason the Judge feels that the parent does not understand, then the Judge will not accept the admission. If the Judge feels that the parent is not capable of understanding by a reason other than a language barrier, then the Judge may appoint a Guardian Ad Litem to act in that person's best interests.

Similarly, the Judge will ask questions to make sure the admission is voluntary. The Judge will ask if anyone has made any promises to the parent. If so, the promises must be placed on the record to make sure that they were not coercive in nature. The Judge will ask if anyone has threatened the parent or coerced the parent in any way. The Judge will also ask them if the parent is on medication. If so, the Judge will explore the nature of the medication and whether or not it might affect judgment. And the Judge will ask the parent if he or she has had any alcohol or drugs. Again, if the Judge feels that the waiver is not voluntary, it will not be accepted.

Some Judges will also ask similar questions to the attorneys. Have you discussed the case with your client? Have you explained possible defenses? Do you think your client is thinking clearly? Have you made any promises to your client?⁽⁷⁾

Once the Judge accepts that the admission is knowing and voluntary, the Judge may also ask questions to determine if there is a sufficient factual basis for a dependency. The Judge may ask the parent questions about the facts being admitted. Or the Judge may ask the attorneys if there is sufficient evidence to support a finding of dependency. Only when the Judge is satisfied that a dependency exists in fact, will the Judge declare that the child is adjudicated dependent.

1. See section on "The Course of Dependency"

2. A mediation has essentially the same end purpose. However, mediation uses a different approach.

3. The adjudication hearing must be held within 90 days from the date the parent was served with the petition. Rule 17 Arizona RPJC. More often than not, that is 90 days from the PPH.

4. Depending on the Judge, there are limited occasions where a child can speak to a Judge privately in chambers. Most Judges require the consent of all the parties. Many Judges will not hold in chamber interviews under any circumstances.

5. Amended petitions are usually prepared by the Attorney General.

6. Rule 16.2(b) Arizona RPJC. See discussion in the handbook section on Dependency Adjudications.

7. So far, we have not heard the Judge ask any attorneys if they are on medications or have used alcohol in the last 24 hours. But be prepared!