How Does A CASA Present Facts?
“Please tell the CASA volunteer that her testimony was excellent. It helped me to really understand the children — how they were when they came in to care and what happened to them while the case was pending up to date.” — comment by the trial judge after a hearing on entry of judgment terminating parental rights.
The Family Code, §§ 107.001(d) and 107.031(d), permits a "volunteer advocate" to be appointed as Guardian ad Litem (GAL) for the child in a CPS case. If the CASA is not appointed as GAL, the court must either have the attorney function as both the Attorney ad Litem (AAL) and GAL, or appoint someone else as GAL, Family Code §§ 107.001(b) and 107.012. Since the responsibilities of a CASA appointed solely under Family Code § 107.031 are not specified, this article only addresses the situation where the CASA is designated as GAL.The Family Code § 107.002(c)(6) specifies the right of a GAL to testify in court, but how that right is exercised is not specified.
CASA as a witness
The best option is for the CASA to take the stand as a witness and be examined like any other witness in the case. Ideally, the AAL should call the GAL as a witness to testify concerning the best interest of the child.The attorney for the Texas Department of Protective and Regulatory Services and the parents' attorneys would be entitled to cross-examine the CASA. In the case mentioned above, this is the process that was used. The Department's attorney or the attorney for another party could also call the CASA to testify. Normally, only an attorney for a party that is in agreement with what the CASA thinks will want to put the CASA on the stand.A primary task of a trial attorney, in my view, is to help the witness communicate what he or she knows to the judge effectively and efficiently. Lawyers have different styles in approaching that task. Some will want to use a list of written questions and get the CASA to practice answering the set questions. Others will take a more free-form approach. Never forget, however, that the objective is to get the facts as known to the CASA before the judge.The volunteer should review all prior reports and thoroughly refresh his or her memory with respect to the case before and after meeting with the lawyer.
In the case mentioned at the top of this column, I was the children's attorney. For the trial preparation meeting, the CASA came with a list of questions to help reach the points she wanted to make about the case. This was a very helpful starting point for discussion. I happen to prefer to work in court with an outline of important points to cover rather than a rigid set of questions.We worked out the areas of inquiry and the sequence in which we would cover the material.Then I briefly went through the issues, asking questions to which she responded.We also explored problem areas in the testimony and possible matters for cross examination. On the day of the hearing, I made sure to cover all the major points she wished to make, but based specific questions on the flow of the narrative, checking off major points as we went through her testimony.
CASA as the Court's witness
On rare occasions, the judge may call the CASA as a witness.The process works in much the same fashion as when the CASA is called by a party.The judge and all parties would be entitled to ask questions. If nobody asks the right question, the CASA would have to ask the court for permission to testify in narrative form.CASA as a story teller
As noted above, the GAL has a statutory right to testify in court. Only an attorney has the right to call and examine a witness. If neither an attorney in the case nor the judge takes the initiative to make the CASA volunteer a witness, it will be up to the CASA to make sure the information gets into the record. Obviously, the CASA cannot examine him/herself. Therefore, the testimony will have to be provided in narrative form.This simply means that the testimony is given as a report of the observations made during the course of the case. Usually the best organization is to describe what happened in the case in chronological order. "begin at the beginning, continue until you reach the end, then stop." Tell the court that you wish to exercise your right to give your observations and opinions as provided by Family Code § 107.002(c)(6).Ask to be sworn in, since your testimony must be sworn if it is to be part of the support for the judgment.Then simply tell the story as you might tell it to your CASA supervisor or put it into a final consolidated court report.Try to concentrate on what you know, not what somebody else may have said. If you are lucky, some attorney or the judge will help you out by asking questions about any part of your testimony that is not clear. However, don't count on help if you have been required to go it alone to this point.
Next time, we will talk about what kinds of information the CASA should concentrate on providing.
