DCS cases: Silence is Golden

In pretty much any case when you are around the other side the main rule to remember is that silence is golden. This is because in pretty much any case anything you say can be used against you. In any DCS case when you are around the caseworker (or other DCS workers) you ARE around the other side. You should be very wary of what you are saying and, if possible, shouldn’t be saying anything. I’ve lost a lot of cases but have yet to lose one because my client said nothing. And, in fact, I have lost a lot of cases because of something my client said.

The only exceptions to this rule are 1. if your attorney tells you to talk or 2. to arrange visitation with your children. You should have an attorney (see my earlier blog posts on this subject) and you should be doing what they tell you. Also you will want to arrange visitation with your kids early in the case and this will require talking to the caseworker. Often this will occur before you have an attorney and it is EXTREMELY IMPORTANT that you visit your children so you will need to do so. Keep the conversation limited to arranging the visitation. This is not the time to “vent” or discuss with the caseworker how “wrong”  DCS is for taking your children etc. That time will be later when you are in court arguing your case.

Which brings up a point. It is often to your advantage NOT to testify in court. Contrary to what you see on “Matlock” these cases are NOT won because the client’s testimony “proved they were innocent” or “moved the court to tears”. The court system is a strange beast and no matter how many episodes of “Judge Judy” you watch you do not know the rules. Whether you like it or not, when in court, you are like Stevie Wonder driving a cab. You need to be listening to someone who can actually see the road.

By way of example, I once had a client who the State called to testify at trial. The State asked her about a termination of her parental rights (to another of her kids) that had occurred ten years prior. I objected arguing that it was not relevant. The judge sided with me and sustained my objection which meant my client didn’t have to answer the question and the issue of her prior termination would not be “in evidence”. But my client really wanted to explain that she really hadn’t failed to drug test ten years ago for meth (it was her sister’s fault) and blurted all of this out even after I had told her she didn’t have to answer. Which meant that the prior termination and the fact that she had failed a drug test for meth ten years prior was “in evidence”. Of course the current termination/removal was based on drug use and my client in one single answer had proven that she was a long time drug user which is exactly what the judge found even going so far as to mention the previous termination/failed drug test in his order.

All of which is to say if your lawyer is telling you not to testify they usually have a good reason and you should listen to them. Silence is golden.