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WORK IN PROGRESS
§ 40915. Relief from disabilities program required as condition for participation in grant programs (a) Program described. A relief from disabilities program is implemented by a State in accordance with this section if the program-- (1) permits a person who, pursuant to State law, has been adjudicated as described in subsection (g)(4) of section 922 of title 18, United States Code, or has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by subsections (d)(4) and (g)(4) of such section by reason of the adjudication or commitment; (2) provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities referred to in paragraph (1), and the person’s record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest; and (3) permits a person whose application for the relief is denied to file a petition with the State court of appropriate jurisdiction for a de novo judicial review of the denial. 34 U.S.C. § 40915 (LexisNexis, Lexis Advance through Public Law 118-22, approved November 17, 2023).) Cal Wel & Inst Code § 8103 (f)(4) – (9) reads If the court finds by a preponderance of the evidence that the person would be likely to use firearms in a safe and lawful manner, the court may order that the person may own, control, receive, possess, or purchase firearms, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms. We address the concern that should a district appellate court find that the CA relief program be considered in compliance with 34 U.S.C. § 40915, said court would in effect read the public interest requirement out of the federal statute, contravening § 105 of the NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, 121 Stat. 2559, (NIAA) which lays out clear requirements for such a determination. Congress did not intend for this language to be superfluous and thus § 105 will not be construed to render it as such. (Keyes v. Lynch (M.D.Pa. 2016) 195 F. Supp. 3d 702, 705.). We acknowledge that it is not an appellate court's role to rewrite the statutes that the legislature enacts; no matter how much rewriting may be desired by a particular group or by the appellate court. The court may not rewrite a statute to conform to an assumed intent that does not appear from its language. Just as courts are not allowed to eliminate words that were purposely included in a statute via judicial interpretation, they are also obliged not to add new words or clauses where the legislature purposely omitted. (Thompson v. Western Constr., Inc., 2023 W. Va. App. LEXIS 187, *1) The appellate court’s role is limited to interpreting and applying the Welfare and Institutions Code as it currently exists (Pittman v. Cook Paper Recycling Corp. (Mo.Ct.App. 2015) 478 S.W.3d 479, 480.). Courts may not, under the guise of statutory construction, enlarge or otherwise change the terms of a statute. In determining the legislative intent, the subject matter, effect, reason for the statute and consequences of proposed interpretations must all be considered, quoting *1209 State ex rel. Hager v. Iowa Nat'l Mut. Ins., 430 N.W.2d 420, 422 (Iowa 1988)); Acker, 541 N.W.2d at 519 (citing identical rules to those quoted from Miller above, and adding that “we will not construe a statute in a way that would produce impractical or absurd results,” and that the court must look at the whole statute and not the separate parts. We assert that Appellate courts may not rewrite unambiguous statutes or rewrite the clear language of a statute to broaden the statute's application. It is only when the language supports more than one reasonable construction that we consult legislative history, the ostensible objects to be achieved, or other extrinsic aids in order to select the construction that most closely comports with the legislative intent. (Melissa R. v. Superior Ct., 207 Cal. App. 4th 816, 144 Cal. Rptr. 3d 48 (2012)); (In re I.A., 40 Cal. App. 5th 19, 23, 252 Cal. Rptr. 3d 774, 777 (2019)). Furthermore, a court may consider the language used in the statute, the objects sought to be accomplished, the evils and mischiefs sought to be remedied and place a reasonable construction on the statute which will best effect its purpose rather than one which will defeat it. (Prudential Ins. Co. of Am. v. Rand & Reed Powers P'ship, 972 F. Supp. 1194, 1208 (N.D. Iowa 1997), aff'd, 141 F.3d 834 (8th Cir. 1998) Additionally, a determination that a person is able to act in a manner safe to the public and granting of relief would not be dangerous to the public interest is implicit in a finding at a section 8103 hearing. In other words, section 8103’s findings of safe and lawful firearm handling adequately subsumes the inquiry. In supporting this declaration, we turn to both the construction of section 8103 and the overall ambit of the LPS Act. That said, we need to examine Wel & Inst Code § 8103 (f)(4) – (9). The phrase “safe and lawful” These two words are written in the conjunctive meaning that each word is separate and bears equal weight in the court’s determination. The court may not find that the person can safely use a firearm but bears a tendency to use the firearm in such a manner that may violate state and federal law given that the legislature did not write this clause in the disjunctive with an “or”. The words “lawful” implicates public safety. [continued] Next, we turn to the legislature’s intent. Welfare and Institutions Code section 8103 (f)(4)-(9) was written within the larger LPS Act. The LPS Act was passed in ____ and was codified to provide prompt evaluation and treatment for the mentally ill and to ensure public safety. (Jacobs v. Grossmont Hosp., 108 Cal. App. 4th 69, 76, 133 Cal. Rptr. 2d 9, 13 (2003), holding modified by Gonzalez v. Paradise Valley Hosp., 111 Cal. App. 4th 735, 3 Cal. Rptr. 3d 903 (2003) Section 8103 (f)(4)-(9) was passed in 2019 as a part of ________. However, its subsequent passage does not preclude it from the protections afforded by the LPS Act. A statute must be construed in context, keeping in mind its statutory purpose vis a vis with other statutory sections relating to the same subject so that all must be harmonized, both internally and with each other, to the greatest extent possible. A statute should be construed whenever possible so as to preserve its constitutionality. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383 [241 Cal.Rptr. 67, 743 P.2d 1323].)
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CARE COURT AND 18 U.S.C.A. § 922(g)(4) PROHIBITION
Relating to the issue of a CARE court order triggering a firearm prohibition, correct me if I am incorrect but the newly passed CARE court legislation does not mention a firearm prohibition be it state or federal. The point of contact process for CA is essentially useless if a CARE court adjudication does not trigger a prohibition within the various databases. https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=202120220SB1338 Relevant parts selected Cal. Welf. & Inst. Code § 5972 To qualify for CARE court, Cal. Welf. & Inst. Code § 5972, an individual shall qualify if the following criteria are met: (b) The person is currently experiencing a severe mental illness, as defined in paragraph (2) of subdivision (b) of Cal. Welf. & Inst. Code § 5600.3 and has a diagnosis identified in the disorder class: schizophrenia spectrum and other psychotic disorders. (c) The person is not clinically stabilized in on-going voluntary treatment. (d) At least one of the following is true: (1) The person is unlikely to survive safely in the community without supervision and the person’s condition is substantially deteriorating. (2) The person is in need of services and supports in order to prevent a relapse or deterioration that would be likely to result in grave disability or serious harm to the person or others, as defined in Section 5150. (e) Participation in a CARE would be the least restrictive alternative necessary to ensure the person’s recovery and stability. To review 27 C.F.R. § 478.11 defines Adjudicated as a mental defective as (a) A determination by a court or other lawful authority that a person, as a result of mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs The conflict lies in that a CARE court adjudication technically is a court proceeding with the indicias of due process per Mai. “Commitments under [California] state-law procedures that lack robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4). Mai v. United States, 952 F.3d 1106, 1110 (9th Cir. 2020). Per Cal. Welf. & Inst. Code § 5976. Respondent shall: (a) Receive notice of the hearings. (b) Receive a copy of the court-ordered evaluation. (c) Be entitled to be represented by counsel at all stages of a proceeding commenced under this chapter, regardless of the ability to pay. (d) Be allowed to have a supporter, as described in Section 5982. (e) Be present at the hearing unless the respondent waives the right to be present. (f) Have the right to present evidence. (g) Have the right to call witnesses. (h) Have the right to cross-examine witnesses. (i) Have the right to appeal decisions, and to be informed of the right to appeal. Unlike the Stokes case where the challenged law under § 5250 et seq was an informal certification hearing with no automatic right to formal legal counsel, CARE court has laid out in its provisions the right of the defendant to avail himself of the protections afforded by formal court processes. Stokes v. United States Dep't of Just., 551 F. Supp. 3d 993, 1001 (N.D. Cal. 2021) CARE court legislation is written in relatively ambiguous manner so that triggering the federal prohibition would be challenging to justify. The legislative guidelines both intone that the defendant is mentally ill and presenting as a danger to themselves but in the same clause they are not yet currently gravely disabled or such a danger to themselves or others that they meet criteria for a 5150 hold. Within § 5972, the wording of the qualifying criteria renders conformity with the ambit of 27 C.F.R. § 478.11 difficult as the federal code mandates that there must be a clear finding of dangerousness to self or others and mental illness. Subdivision (2) of § 5972 reads that CARE court services should be ordered to prevent a decompensation or relapse that would be “likely to result in [current] grave disability or serious harm to others or self within the meaning of § 5150”. If the DOJ were to follow strictly apply 27 C.F.R. § 478.11, this particular phrasing “to prevent a relapse” that would result in serious physical harm does not appear to confer a finding of current serious harm to others or self and thus does not fall within the federal definition that defendant is a danger to self or others; the first prong of the federal code. In fighting against a federal prohibition, advocates could draw from LPS Conservatorship precedents. Perceived likelihood of future relapse, without more, is not enough to justify establishing [current grave disability] and need for LPS Conservatorship. Conservatorship of Jones (1989) 208 Cal.App.3d 292, 302 [256Cal.Rptr. 415]. The pivotal issue in whether [respondent] is presently gravely disabled, not whether the patient would incur some incidental benefit from conservatorship. Conservatorship of Benvenuto (1986) 180 Cal.App.3d. 1030, 1034 [226 Cal.Rptr. 33] However, advocates in California in making their case can articulate to adjacent LPS Conservatorship case law to support a finding that a CARE court determination is the same as a finding that a defendant is dangerous to themselves or others due to a serious mental illness diagnosis. Drawing from LPS Conservatorship precedent, advocates can rely on other case law which does address that in certain cases the likelihood of future deterioration foreclose a finding of current grave disability if the fact finder can determine the patient has no insight into their mental disorder which is the majority of the serious mentally ill population. Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1576-1577 [254 Cal.Rptr.552]. They can also assert that if dangerousness to self cannot be assessed at the present moment through physical actions alone, the threat of harm to oneself may be through neglect or inability to care for oneself”. In re Doremus v. Farrell (D.Neb. 1975) 407 F.Supp. 509, 515. A note; CARE court determination based on grave disability alone is moot as the BATFE clarified that grave disability finding alone does not trigger the prohibition. Whether that is proper legal analysis is a discussion for later. Therefore, I believe that if there were to be prohibition it would be at the state level and follow the same format as Cal. Welf. & Inst. Code § 8103 et seq. Perhaps it would be a five year prohibition. The Mental Health Division of The Superior Court of Los Angeles County will implement the following changes to courtroom operations effective January 3, 2023:
Filings may be faxed to (442) 247-3972. Documents for competency matters may continue to be submitted for filing to the Hollywood Courthouse Clerk’s Office or faxed to (442) 247-3957. Counsel and parties are instructed to indicate the assigned judicial officer and department on the first page of all documents submitted for filing to ensure proper departmental assignment, calendaring of hearings and document routing. 8/3/2023 5250 certification and CA's state level non existent relief from federal disabilities.Read NowDISCLAIMER: If a person is seeking relief from disabilities and they are facing ONLY 5150's AND/OR 5250 WITHOUT HAVING HAD A CERTIFICATION HEARING OR WRIT OF HABEAS CORPUS; our State Form for Petition for Relief from Firearm Prohibition will suffice along with development of a strong points and authorities along with exhibits.
Link to form REQUIREMENT FOR NOTICE UNDER WIC 388
In re Mia M. (2022) 75 Cal.App.5th 792,806 work in progress In re Mia M. (2022). 75 Cal.App.5th 792, 807. The appellate reviewed the lower court’s ruling on the section 388 petition for abuse of discretion. Since a section 388 is a _____, the appellate courts will review the instant court’s decision with higher level of deference. In re E.S. (2011) 196 Cal.App.4th 1329, 1335. However, since the issue of notice carries the serious consequence of permanent severance of the parental relationship with minor, the reviewing court will consider the matter applying the de novo standard as to whether inadequate notice violated parent’s due process rights. In re J.H. (2007) 158 Cal.App.4th 174, 183). This cases arises out of a [alleged] father who was in the process of elevating his paternity via a DNA test when the court proceeded in terminating [whose] services and setting the .26 hearing. Father appealed on the basis that the court did not wait to confirm paternity and did not provide him proper notice of proceedings against him. Father alleges that he was not properly noticed of _________. A father’s status is equally significant in a dependency case as the mother because his role as presumed or putative? determines the extent to which he may participate in the proceedings and the number of rights to which he is entitled. Presumed father status ranks highest as this “class” of father is afforded the right to counsel and a narrowly tailored case plan. Alleged fathers are not afforded the same degree of rights but they are entitled to notice and a chance to elevate their paternity status (through DNA testing?). Depending on the circumstances, a court may provide reunification services to a biological father, if it determines that the provision of services will benefit the child. Welf and Inst Code § 361.5. REVIEW HEARINGS AT THE 18 MONTH REVIEW
Michael G. v. Superior Ct., 14 Cal. 5th 609, 526 P.3d 120 (2023) Issue: Is the juvenile court obligated to provide a continuance to parents at the 18 month review hearing if there has been a finding of no reasonable services? Dependency law does not patently forbid courts from extending reunification services past 18 months under Cal. Welf. & Inst. Code § 366.22 (a)(3). The code does not require the court to extend time in every case in which they find reasonable services were not offered. The court must at all times engage in a balancing act [citation] where it weighs the parent’s rights to raising their children and the best interest of the minor. At every review hearing, the court must consider three factors; the parents’ efforts in redressing the issues that brought minor under the court’s jurisdiction, the minor’s best interests, and the efforts that DCFS has put forth in providing reasonable services to the parents. This case comes before the Supreme Court concerning a father who on cert questioned the uncertain nature of the Legislature regarding the proper course of action when at the 18-month hearing , he did not receive reasonable reunification services during the 12 to 18-month extension period and therefore asserted he was owed an extension of time. The trial court had terminated reunification services and set the matter for a .26 at the 18 month review hearing. Father filed a writ petition challenging the lower court’s decision to terminate. The appellate court denied the petition. Father petitioned for cert and the Supreme court granted cert. This opinion followed. When a minor is adjudicated a dependent per Cal. Welf. & Inst. Code § 300, the court must task the child welfare agency with adopting a case plan for the parents. Cal. Welf. & Inst. Code § 16501.1 establishes that the foundation and central unifying tool in child welfare services is the case plan. This case plan shall be instrumental in the plan to reunify the minor with parent. Before the setting of a .26 hearing, the court must balance many factors throughout the life of a case. It must bear in mind the overarching goal of the dependency scheme; the vital interest of the minor’s safety, stability, and protection, the parents’ interests and rights in raising their children, and the state’s interest in protecting its most vulnerable. In re Caden C., supra, 11 Cal.5th at p.625. During the reunification period parents must be offered services to address the causes that led to dependency. If the court finds that it cannot safely return minor to the parent within the statutorily specified timeframe, the court shall terminate services and set the matter for a .26 hearing to select a permanent plan to the permanency stage, where places the child up for adoption or it selects another permanent plan, such as placement with a guardian or long-term foster care. The Legislature provides at the 18 month review hearing the juvenile court bears the responsibility for determining how to proceed after entering a finding that DCFS failed to provide reasonable services. The law is not explicit in whether reunification services were mandatory if there was a no reasonable services finding. Rather the law intones that the court must properly consider an extension based on the totality of the circumstances rather than entering a decision based on individual elements in a vacuum devoid of context. However, in considering the best interest of the minor, prior precedent establishes that childhood does not wait for the parent to become adequate and lengthy delays in the court system is a lifetime to a child. In In re Marilyn H. (1993) 5 Cal.4th 295. This urgency for permanency really controls at the 18-month review hearing; an attitude that reflects the core legislative import of seeking to prevent children from spending their lives in the uncertainty of court. Cal. Welf. & Inst. Code § 366.22(a)(3). As a general rule, once a child has been out of a parent's custody for 18 months, the court must proceed to set a hearing to select a permanent plan for the child. Cal. Welf. & Inst. Code § 352 does find that the although the Legislature favours adherence to timelines, said timelines were not intended to be enforced strictly at the expense of due process concerns or preservation of family when the proper factors permit. A possible caveat to this is if the court at the .22 hearing may not terminate parental rights and place child for adoption if it finds that reasonable services were never provided throughout reunification period. Cal. Welf. & Inst. Code § 366.26(c)(2)(A). The code specifically reads (2) The court shall not terminate parental rights if: (A) At each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided. The operative term being “each” review period. This means that the court at each review hearing shall have entered into the record that reasonable services were not provided to parent. This means at the 6 month, 12 month, and 18 month. It implies that there cannot have been a reasonable services finding at the 6 month, then no reasonable services finding at the 12 month, and then another no reasonable services finding at the 18 month. Another caveat that this case mentions is that there should be extraordinary circumstances barring parent from engaging in their services. Extraordinary circumstances could also entail a reunification plan that cannot completed until well over the 18-month reunification period or a case where the parent was hospitalized for most of the reunification period but demonstrated a near perfect record of visitation and substantial efforts to comply with the case plan. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777–1778. However, exceptional circumstances sufficient to trigger the discretion to extend services are limited to the Agency's serious flaws or external events that prohibit the parent’s compliance and do not include a parent’s own failings The Michael G case establishes that both case law and statutory authority is not “clear cut” on whether the juvenile court’s broad authority under Cal. Welf. & Inst. Code § 352 confers it the right to extend the reunification period beyond the 18 month period in all instances of no reasonable services. If a statute is susceptible to two interpretations wherein one will render it constitutional and other constitutionally violative in whole or in part, the court must either adopt a construction that does not violate the meaning of the language contained therein, render it valid in its entirety, or free any doubt as to its constitutionality, even though the other construction could be held reasonable. Whether to grant a continuance of a hearing in a dependency case, pursuant to statute providing juvenile court with discretionary authority to continue, for good cause, “any hearing” under dependency law beyond otherwise-applicable time limit, is a decision reviewed for abuse of discretion, a deferential standard. Cal. Welf. & Inst. Code § 352. Deferential standard provides a great deal of deference to the lower courts’ authority in that there is a high burden of proof that the appealing party must show to evince that the lower courts erred in their decision making process. In this case the Supreme court upheld the instant court and the reviewing appellate court’s decision and concluded that there were not extenuating circumstances in the father’s case that warranted that the court’s exercising of its authority under section 352 and that extending services to father would be fruitless, as father had not maintained consistent and regular contact with child, had not made significant progress in redressing the issues that led to juvenile court involvement, and had not demonstrated capacity to complete the components of his case plan. 6/18/2023 Response to Elizabeth Bartholet Thoughts on the Liberal Dilemma in Child Welfare Reform ( 24 Wm. & Mary Bill Rts. J. 725 (2016)Read NowMy Response to
https://hls.harvard.edu/bibliography/thoughts-on-the-liberal-dilemma-in-child-welfare-reform/ Author opens with the following “The Liberal Dilemma is a problem in child welfare is a central problem. The dominant group in the child welfare area is and has been for the past several decades a self-styled liberal group. But the dominant liberal group has had a silencing impact on many liberals who fear being labeled as right-wing simply because they disagree. This can make it seem as if the liberal position is the dominant group position”. I would find that Rachel Ewing , Children's Law Center of California , and Los Angeles Dependency Lawyers would object. Too often families are separated by the juvenile court system due to an overabundance of caution for the welfare of the child which in reality leads to disproportionate removal of low income and minority families who lack the legal resources to defend against charges. As Central Appellate Project and others would state in the juvenile court system it is too often the reality that parents are guilty until proven innocent. The author then opines the following: The dilemma or problem has to do with the nature of the policy the liberal group promotes. The policy focus is not on children, as should be the case in the child welfare area. In theory, children’s best interests should be the guiding principle. I dissent as the objective of the CA dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes should those children cannot safely be returned home within the prescribed time. Welf. & Inst. Code, §§ 300, subd. (j), 361.5, 366.26, subd. (b) The public vests its trust in DCFS to acting as temporary custodians of dependent minors and to conduct its investigations properly. In re Daniel F., supra, 64 Cal.App.5th at p. 711. Furthermore, CA Legislature has defined the best interests of children in dependency proceedings along a statutory continuum, meaning that there is no uniform picture of “best interest” as each family must be considered within the totality of the circumstances which include race, income, and personal history. In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787 The author moves to state the following: There is no real focus on children’s best interests. Instead, the focus is on demonstrating that various family preservation programs are successful in terms that will persuade policymakers to adopt them. There is no real focus on children’s best interests. Instead, the focus is on demonstrating that various family preservation programs are successful in terms that will persuade policymakers to adopt them. I take the author to task for failing to recognize that in the CA dependency scheme, before and after removal, family reunification is the focus, not selection and implementation of a permanent plan. Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. Accordingly, a parent’s rights are at their highest at the pre-termination stages. In re Arturo A. (1992) 8 Cal.App.4th 229, 238. It when the court finds that reasonable services have been providing within the proscribed time frames, that the parent did not avail themselves of those services, and that the factors that brought the minor under the jurisdiction of the juvenile court still exist that the court shift from family preservation to termination of rights and selection of a permanent plan to provide the dependent children with stable, permanent homes. Elizabeth R., supra, 35 Cal.App.4th at p. 1787. The author again misconstrues the import of reunification services before setting a selection and implementation hearing under Welf. & Inst. Code, § 366.26: Policy focus is on adults and their welfare. While they claim to care about child interests, its real goal appears to be to serve the interests of poor adults and to alleviate the suffering associated with poverty, including any harm that parents might suffer from state intervention in cases of child maltreatment. Although not strictly a California case, In re Smith established that termination of parental rights is tantamount to the death penalty in a criminal case. In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Because termination carries such serious consequences, the author understates this harm that parents incur from selection and implementation proceedings. Author states: There is no real focus on children’s best interests. Instead, the focus is on demonstrating that various family preservation programs are successful in terms that will persuade policymakers to adopt them. As stated ante the author’s paper appears to focus on proceedings before the adjudication and jurisdictional proceedings hence the Legislature emphasizes at this point the importance in efforts for family preservation. The state bears few powers greater than the authority to end a parent’s rights. When the state seeks to exercise that power, they must be afforded every procedural and substantive protection the law allows. Therefore the parent’s right to attempt to reunify with their children via services is essential to due process. It is also not often the case that DCFS would order a case plan and then allow parents to sit idly and not redress the issues that brought the minor under the court’s custody. Our statutes provide that the failure of parent to participate regularly in court-ordered treatment programs shall be prima facie evidence that the return of the child to the parents’ custody would be detrimental. Welf. & Inst. Code, § 366.21 subd. (f). Author's assertion that: There is an emphasis on the money that such programs will save. The dominant liberal group knows this and so its research emphasizes short-term financial cost savings. The dominant liberal group claims that keeping children with their birth parents is almost always good for children. I cannot provide sufficient data about funding but Children's Law Center of California and Los Angeles Dependency Lawyers would know more. I will rebut the claim of keeping children with "abusers" or neglectful parents. Firstly the state does not decide on the preservation of the parental bond based on surface level interactions as “they will always confer some incidental benefit to the child”. Rather even at a .26 hearing it will find the bonding exception based ONLY on regular visits and contact or developed a significant, positive, emotional attachment from child to parent. The Court defined this beneficial continuing relationship as one that promotes the well-being of the child to such a degree that it outweighs any purported well-being the child would newly gain in a permanent home with new adoptive parents. In re Autumn H., supra, 27 Cal.App.4th at p. 575. Furthermore on the detrimental effects of abuse, our Legislature provides that in extreme circumstances, under Welfare & Institutions Code § 361.5(b) services will not be provided to a parent when certain circumstances exist by a showing of clear and convincing evidence. https://www.courts.ca.gov/documents/BTB25-PreConJDLP-03.pdf This chart evinces that the State does not attempt to reunify when there are very serious charges (like severe sexual abuse/trafficking) against the parents. Extensive evidence existed at the time showing that child maltreatment was generally associated with serious family dysfunction, including serious drug addition, domestic violence, and mental illness—problems for which short-term limited support services would provide no magic cure. However, to carte blanche deny a parent of their right to services via bypass provisions under Welf. & Inst. Code, § 361.5(b) citing solely the minor’s best interests would be antithetical to not only the import of section 361.5 but to the current dependency system as a whole. Author appears to worry about the time needed to afford parents a chance to address their issues. Our dependency system comports with Santosky requirements because, by the time parental rights are terminated at a 366.26 hearing, the court must have made prior findings that the parent was unfit and was unable to redress issues via case plan. Per Santosky before the state may sever a parent’s rights due process mandates the allegations be supported by clear and convincing evidence. Once the state has shown unfitness it is then that the court may then assume the minor's interests shall have diverged from those of parents. In re G.S.R., 159 Cal.App.4th 1202, 1211 (Cal. Ct. App. 2008). Should parents fail to make efforts to address their case plan CA does recognize that protracted hearings may not seem like a long period of time to an adult; they can be a lifetime to a young child. Childhood does not wait for the parent to become adequate. In re Marilyn H. (1993) 5 Cal.4th 295. Hence we have strict timelines for completing services with mandatory review hearings. Onto the author's concern that "Keeping children at risk of neglect at home instead of removing and providing services to support their families" is not the appropriate avenue of care. "The State of California is not in the business of evaluating parents and redistributing their offspring based upon perceived merit. The parents who come through the system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children's needs in an appropriate manner. They will not turn into superstars, and they will not win the lottery and move into a beachfront condo two blocks from a perfect school. This is a hard fact to accept. We are dealing, after all, with children, and the dedicated people who work so hard to help these families are understandably desirous of providing those children with the best possible circumstances in which to grow up. But there are times when we have to take a step back and make sure that we are not losing sight of our mandate. We are looking for passing grades here, not straight A's". David B. v. Superior. Court (2004) 123 Cal.App.4th 768, 794 Author voices concern over inadequate investigations: Second, there is extensive evidence that most CPS cases involve children at serious risk of maltreatment from their parents. Investigations are essential to determine whether some cases truly pose no significant risk to children and so can safely be placed on a voluntary track. Termination of parental rights is the family law equivalent of the death penalty in a criminal case. Thus they must be afforded every procedural and substantive protection the law allows. In re Smith, 77 Ohio App. 3d 1, 16. Speaking of money, the courts must make a finding that continuance in home is contrary to their welfare, a finding crucial for eligibility for federal funding Welf & I C §319(c); 42 USC §§670–679c. At detention, the court must determine there is prima facie evidence of danger. The purpose of detention is to determine whether the child may be a child described by Welf & I C §300. If DCFS fails to make a prima facie case then the court must order the child released to their parents and dismiss the case. Welf & I C §319. Before detention, the CSW must interview the minor, parents, relatives, professionals, and others who may bear vital information about the child’s safety. A note: CSWs usually rely on SDM tool in CMS in addition to their professional knowledge of child abuse and neglect but even then the SDM can be flawed. If DCFS makes the prima facie case that minor comes within the jurisdiction of the court but evidence does not show there is substantial danger per §319(c) or that continuance in the parent's home is not contrary to their welfare, then they must be released to their parents pending a jurisdictional hearing. Welf & I C §319. All of these indicia evince that there are more rigorous guidelines to investigations and/or removal of minors. Los Angeles Dependency Lawyers would be better situated to speak on how often the SDM is flawed in advising risk and unnecessary removal. Author voices concern over inadequate investigations: Second, there is extensive evidence that most CPS cases involve children at serious risk of maltreatment from their parents. Investigations are essential to determine whether some cases truly pose no significant risk to children and so can safely be placed on a voluntary track. Termination of parental rights is the family law equivalent of the death penalty in a criminal case. Thus they must be afforded every procedural and substantive protection the law allows. In re Smith, 77 Ohio App. 3d 1, 16. Speaking of money, the courts must make a finding that continuance in home is contrary to their welfare, a finding crucial for eligibility for federal funding Welf & I C §319(c); 42 USC §§670–679c. At detention, the court must determine there is prima facie evidence of danger. The purpose of detention is to determine whether the child may be a child described by Welf & I C §300. If DCFS fails to make a prima facie case then the court must order the child released to their parents and dismiss the case. Welf & I C §319. Before detention, the CSW must interview the minor, parents, relatives, professionals, and others who may bear vital information about the child’s safety. Yes author is correct in that the minor-dependent is entitled to view the agency as his champion and able to place complete faith in its expert analysis of his adoptability, return home, or alternative placement. The party who suffers a due process violation when DCFS submits a wholly inadequate report is the minor- dependent. However, as the suppression of information material to guilt or innocence in a criminal trial violates the due process DCFS violates a minor's due process right to a fair hearing when it fails to disclose material information. However, contravening In re B.D. 35 Cal. App. 5th 803, not fully giving weight to parents' circumstances that brought them under the court's jurisdiction and efforts with services shall have destroyed the evidentiary foundation for an accurate determination of minor's appropriate placement and violate parents's due process rights. Parents cannot mounted a proper challenge when their counsel do not know they had an evidentiary basis to do so. |
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Juvenile Dependency and
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