In practice the vast majority of times the courts do grant a Motion to Dismiss is if the Department seeks it and all parties agree. However, the court does have discretion and can make the parties go forward at trial. I have had that occur a couple of times in my practice; although if DCF is seeking a dismissal, a lot of the time a trial is not something that they are not able to produce evidence or even want to produce evidence. A lot of time what occurs is that the judge will continue or not finish a trial because the judge wants to get more information or wants more time.
Although, 90% of the time with everyone’s assent the case does get dismissed. Sometimes judges look at it more carefully and will either deny or continue the Motion to Dismiss while the parties certainly have the opportunity to have a trial to go forward, on a practical level some of the time you are not able to get the trial done on that day. It is very important to have all your ducks in a row in order to make sure that the court will dismiss your case. Some judges will do that administratively or just with the attorneys; other times the court wants to hear from the parties and question DCF, child’s counsel, even talk to the parents and probation. They might ask probation to look not only at the criminal records, but to see if there are any police responses to the home. They might ask DCF when the last time that they had actually gone to see the children and might want to get a record to show that child’s counsel has no protective concerns. So sometimes the vast majority of time it is a pretty straight forward easy thing to do but just to be cognizant of the fact that it is not automatic that the court has to allow an Assented to Motion to Dismiss.