The movie I am Sam is a feel good movie that depicts the struggles of parenting with mental illness and about fighting a rigid system. However, the movie falls short on the legal side of things. Here are some of the things that the director got wrong in the legal side of things.
To begin with the entire process takes a really long time for most parents. Most cases last a year or more before the court considers closing the case. The parents need to have completed their case plan and have moved to having the child in their custody again before the court and CWS considers stopping involvement. The movie shows the process with emphasis on the first part of the hearing process and a short part after Sam gets custody of his daughter. There are no scenes of him working a plan to get her back. The entire movie seemed to focus on the jurisdiction hearing and the fight to disprove that the allegation that he was unfit to parent due to his mental retardation were not grounds for adjudicating his daughter dependent.
His supervised visitations were fairly realistic. The visitation rooms were set up in a similar fashion as the ones in the CWS offices. The visitation was supervised by a case worker or county worker. In the movie there was a two sided glass window in which they observed his visit. There are toys and other fun kid related activities. The movie did capture the awkwardness of the constrained interactions well. However, one scene where he was an hour late to his visit, the worker allowed her to stay and wait for him. This is fairly incorrect as the worker in real life usually cancels after the first 15 minutes.
There were no CFT meetings. There were no meetings where he met with his case manager and discussed the things that needed to be changed to reunify. The case worker played a small role whereas in real life the case worker is the primary person who the parents will interact with. The case worker monitors the progress, arranges visits, and schedules meeting with providers and counseling groups.
Speaking of a lack of a case worker, there is no mentioning of him getting a case plan. He never receives a case plan that entails the things he must accomplish to reunify with his daughter. During the court conferences, the court focused on his mental disorder and whether that would make him capable of handling the duties of parenting. Even though he had private counsel, a evidentiary hearing or contested matter hearing would have been shorter than the movie showed.
The reality is that the case plan is the most important key factor to reunification. The court monitors and determines whether reunification can occur heavily based on the parent's compliance with their case plan. Should the parents fail to comply with their case plan, the court most likely will move to reunification.
The foster parents in this movie play too large a role. In real life the foster parents may interact with the parent but do not play a large role in reunification. If the foster parents wish to report any changes in the child's behaviour or signs of abuse then they may but their role is fairly insignificant compared to the case worker or the parents' attorneys. Also the foster parents do not have the right to negate termination of parental rights.
In the movie, he is shown to relinquish his rights. Should a parent in real life choose to relinquish their rights, then they moved for termination of parental rights or voluntary relinquishment. Should the parental rights be terminated, there is no going back. Termination of parental rights is athe most final act that can occur and cannot be reversed. The foster mom's change of mind may be well intentioned but in any court of law would have little effect in the reversal of a termination of parental rights hearing. The movie portrays it as if he gives up his rights but then the foster mom has a change of heart and his rights are completely restored and all proceeds smoothly. He would still need to complete a case plan, do his visitations, and home study should he contest terminating his parental rights. Just because of a change in mind, he does not automatically get his daughter back without doing the work.
I know the movie's goal was to reach the feelings of the viewer but it is important to know how the dependency process works in real life and not everything is a fairy tale. Now go watch My Cousin Vinny... that is a realistic movie with proper legal procedure.
Conservatorship of Margaret L. (2001) 89 Cal.App.4th 675 The Fourth District Court of Appeal held that when appointed counsel in a conservatorship appeal fails to discover an arguable issue, the Court of Appeal must independently review the record upon request. Civil commitment to a mental hospital threatens a person’s dignity and liberty on as massive a scale as that traditionally associated with criminal prosecutions and hence it is not too burdensome for the appellate court to review the record for arguable issues. The court stated, “We did not find it too burdensome under these circumstances to expend two or three hours to review this sparse record for arguable issues. Such cases, after all, terrorize us with the prospect of extra work.” (Id. at 682).
In the realm of dependency court, this rings especially true. Without the proper attorney, the parents are often forced to enter a plea of not guilt. Usually the court will still make a true finding on the petition and the parents are ordered to services. During the detention hearing, the court will find that the children will need to be removed and the parents ordered to return for the jurisdiction/ disposition hearing. During the J&D hearing this is the only time that evidence will be heard in front of the court. Even then the hearing is very short (around 10 min) and the review of the report is perfunctory at best. I understand that there is a dearth of time but sometimes the reviews are ridiculous short. If parent's counsel sets it for contested matter,, then that hearing will be equally short and shallow. This is a large issue because there are often issues that may lead to fewer services or a shorter time line to unsupervised visits. Without proper review the parent is often denied their right to a complete hearing.
This is also an important matter in the fact that the conservatee's record often contains misstatements or partially incorrect information. Having taken care of clients and been in cases myself I can attest that this does not happen. Almost never. Too often the counsel is overworked and does not have time to review the case properly. I have seen clients ask their counsel to contest that there are lies in the file, but their attorney dismisses them or simply enters that the conservatee will contest the conservatorship. There are no serious evidentiary hearings set for the conservatee. and as a result, many conservatees have complained about inaccurate dates and statements. Take it from the conservatee's point of view. If someone wrote many inaccuracies about you but the court decided to take as a fact would you not feel slighted. As if your opinion or view of reality was not serious taken into consideration. All of these people talking about your life but you have no say.
That is all I have for today. Remember that for all those case workers and attorneys as your client's opinions matter. You're supposed to be helping and doing all of this for them not yourself.
Conservatorship of Baber (1984) 153 Cal.App.3d 542 The Fourth District Court of Appeal held that a proposed conservatee may not refuse to testify in his or her own conservatorship trial (i.e., Fifth Amendment privilege against self incrimination not applicable). The Baber court also held that the doctrine of double jeopardy is not applicable in conservatorship proceedings.
Conservatorship of Mitchell (1981) 114 Cal.App.3d 606 The Second District Court of Appeal held that proposed conservatees do not have a right to a warning of the privilege against self incrimination prior to psychiatric examinations.
I have a question about this... So if a conservatee is not allowed to refuse to testify or denied the right of warning about self incrimination, then does this not place the conservatee at a disadvantage? To begin the conservatee is usually unaware of the courtroom dynamics and how the laws are structured. Secondly, the conservatee does not know explicitly what the judge is looking for during a hearing so the conservatee may make a statement that harms their case. Even though they have a public defender, the public defender may often fail to inform the conservatee of all their rights or look over their case file carefully. Unfavourable evidence may be presented forcing the conservatee to address those facts without proper preparation. This another reason for why there should be a push for having better less overworked public defenders for LPS conservatorship cases. Like juvenile court there are around 1500 conservatees who all need public defenders and only three or so public defenders that handle LPS hearings. That averages around 400 clients per attorney. Give or take some for those who are managed by fiduciaries or family. Even the best counsel cannot proper give each case attention with that many clients. Which brings us back to the conservatee needing to do a lot of their own work and not knowing what to say and what not to say. See how the circle comes around again. It's vicious cycle that is common with most government agencies.
It is up to us to establish that LPS conservatees are entitled to proper counsel. It is even enumerated in the W&I 300 et cetra codes for dependency cases. Why not LPS?
DAILY JOURNAL http://www.dailyjournal.com © 2001 The Daily Journal Corporation. All rights reserved. Note: The Daily Journal is an excellent publication well worth the cost of subscription, in my opinion. Judicial Profile HON. DAVID A. ZISKROUT Commissioner Los Angeles County Superior Court PROFILE In the often delusional world peopled by those who land in the county’s mental health court, it’s not unusual for someone to claim to be Elvis Presley, a CIA agent or Jesus Christ. Still, for Commissioner David A. Ziskrout, after 16 years of presiding over conservatorships in the one-story brick building, surrounded by barbed wire and tucked away in the industrial outskirts, one case stands out. The man, who had been arrested for acting bizarrely, claimed he didn’t belong in the mental health court. He’d just had too much to drink. He owned a car dealership in Arizona and had a Lear jet waiting for him at the airport. “Well, this is fantasyland,” Ziskrout said during an interview. “We have people coming in here claiming to be God, the president of the United States. This type of delusional talking is part of our everyday occurrence.” But the public defender checked the man’s story. It was true. “He did have a Lear jet at the airport and own a car agency,” Ziskrout said. “He just went on a toot here and got himself messed up, but he didn’t belong in a conservatorship.” It was a good object lesson for Ziskrout in not getting too jaded in an assignment he’s been in since 1978. In fact, Ziskrout, 59, has been at the job so long his full head of hair has grown nearly white. Conservatees, returning year after year for status hearings, often greet him as a long, lost relative. “I guess I represent sort of a family figure or at least someone who’s recognizable in their life,” says Ziskrout, referred to familiarly as “Z” by many lawyers. “A lot of them see different doctors in different facilities or have lost contact with their families or have no families. I’m a familiar face that they see at least a couple of times a year, and for a lot of them, it’s a very friendly reunion.” Ziskrout’s Department 95A, along with the Los Angeles Superior Court’s Department 95 where mental competency hearings are heard by Judge Harold E. Shabo is the only court in the county, and one of a few in the nation, devoted exclusively to mental health issues. It’s not uncommon for Ziskrout to handle more than 80 cases in a day. His chambers, where he does much of his work, reflect his longevity there. Eight empty bottles of vin rose from the nearby San Antonio Winery line a dusty shelf, marking the going-away parties of past employees. A pipe rack holds a dozen pipes donated by various friends and colleagues. Rocks occupy another shelf, along with some driftwood, faded Polaroids and an assortment of drawings by conservatees. A wall poster of the Northern California Redwoods reveals Ziskrout’s love both of nature and his own woodworking passion. There’s even a full-sized, old-fashioned wooden telephone booth in one corner like the kind Superman used for quick clothes changes donated by a friend who once worked at the phone company. A brimming electric coffee pot and box of pastries add to the homey hodgepodge, offering a welcome treat to lawyers and court staff, who wander in helping themselves throughout the day. The judges hired Ziskrout as a commissioner in July 1970. The former private practitioner spent the two previous years as a juvenile court referee and continued to work in juvenile court until transferring to his current assignment. Although he ran for a judgeship in 1984 winning the primary and losing in a run-off by about a half of 1 percentage point as a Democrat in a Republican administration, he has not pushed for an appointment. He recalls submitting his application after losing the election but hasn’t heard anything since. In any case, Ziskrout says, being a commissioner ensures him of staying in an assignment he prefers because, like juvenile court, it offers an opportunity to make a difference in a person’s life. “He’s the best person for that court I can imagine,” said Rudolph Pearl, an attorney on the mental health panel and former deputy public defender. “It’s the only court I know where when he is finished with what he has to do, he asks, `Do you have any questions of me?’ He’s such a nice man. People love him. They don’t want him to leave.” Added Marc Berrenson, a panel attorney and former prosecutor, who has appeared before Ziskrout for more than 16 years: “It’s easy to get hardened toward the conservatees. It’s easy to have the attitude that, `This person doesn’t know what I’m saying when I say it, so who cares?’ But he still comes across as caring to conservatees, who come in once a year to see him and write letters that are posted all over his chambers.” “He never appears hurried, yet he moves a huge calendar extremely efficiently,” said panel attorney Stephen E. Webber. And despite the workload, lawyers say, Ziskrout manages to let everyone be heard. He shows infinite patience with conservatees. Many ramble, yell, scream and are generally abusive. Often their claims are so absurd, it’s hard not to laugh. When that occurs, Ziskrout will call a recess and leave the bench, sometimes with his hand over his mouth, but he never will show disrespect to the parties. Lawyers say he is equally respectful of families and friends of conservatees, even those suspected of trying to shirk responsibility for a relative or petitioning for a conservatorship to pilfer a person’s life savings. When the estate of an ailing 99-year-old woman was contested by her 34- year-old boyfriend, Ziskrout let the boyfriend make his case, despite evidence he had abused and stolen from the woman, said Webber, who represented the woman’s nephew. “He allowed the man to have his day in court before making a decision,” Webber said. “No matter how outrageous [the boyfriend’s] claims, [Ziskrout’s] demeanor never changed. I’m sure the man left feeling he got a fair hearing.” Ziskrout eventually ruled in the nephew’s favor, and Webber later recovered $100,000 of about $500,000 the boyfriend had taken. Before enactment of the Lanterman-Petris-Short Act of 1968 that overhauled the mental health system, a disgruntled or greedy relative or guardian could commit a person indefinitely with the authorization of one doctor. Since LPS, all cases are filed through the public guardian’s office. People determined to be mentally ill are entitled to hearings, jury trials and periodic status conferences to protect their rights and assets. Not everyone landing in Department 95A ends up in a conservatorship. In fact, Ziskrout said, in the majority of cases that are tried before juries, regardless of the person’s ability to provide for him or herself, the jurors will cut the person free. Often, the decision is to their detriment. Ziskrout recalled one case, in which the person was found the next morning huddled outside the courthouse. “Obviously, he didn’t have anyplace to go,” Ziskrout said. “But people get a little mixed up in terms of allowing their emotions or prejudices to dictate what will be the outcome of the case, as opposed to following the law and listening to the evidence.” That is one of the conflicts in this specialized field, in which medical providers are often at cross purposes with the law. The frequent argument the defense makes to jurors is not to impose their standard of living on the defendant. If someone can find what he or she wants to eat in a garbage can and is comfortable living on the street, that’s the person’s right. But, Ziskrout points out, some people come to court with severe burns or lacerated feet because they don’t know enough to wear shoes or stay out of the summer sun. And problems can’t be resolved by giving some people money, because many of them will give it away. “So it’s a difficult balance between those two disciplines: trying to give credence to a person’s right and trying to do what this court is supposed to do, afford some protection to this person,” Ziskrout said. In rare cases, Ziskrout will hold bedside hearings for people too ill or disabled to come to court. He used to do it more frequently but found many people took advantage of the practice who merely wanted to avoid coming to court. One memorable bedside hearing involved a 42-pound anorexic woman who had been stricken with cardiac arrest. She finally managed to reach 60 pounds and came to court to plead her case before a jury. They found her capable of caring for herself. “I remember her closing remark to [her lawyer] after the jury disclosed the verdict,” Ziskrout said. “She said, ‘Richard, I’m so happy. I’m going to cook you a big meal.’” The woman later landed back in the hospital as a voluntary patient. One way to avoid a conservatorship is if a person accepts treatment. Through the years, Ziskrout has grown attached to the people coming before him, many of whom are without family or friends. “I’ve had the benefit of having a loving family, uncles, good friends,” Ziskrout said. “It’s hard to imagine experiencing life without anyone. So I guess those people who come in here, who have had that type of life I get a little sentimental about. Not only do they have the misfortune of having a mental disability, they have no one around who really gives them any type of comfort or support.” Ziskrout, who is divorced, counts two adult sons and numerous relatives among his extended family. A Los Angeles native, Ziskrout earned bachelor’s and law degrees from the University of California at Los Angeles in 1957 and 1961, respectively. He paid his way through school doing construction work and carpentry for his uncles, whom he credits with influencing his career and life choices. He began his eight years of private practice with one uncle, Abraham Gorenfeld, now a Los Angeles Superior Court commissioner in Torrance. Another uncle, now 77, visits Ziskrout’s Glendale hillside home every Saturday, where they work on various carpentry projects, including a recently completed gazebo and flagstone path. “I’m constantly building something, doing something,” says Ziskrout, who describes his lifestyle and ambitions as modest and informal. Sitting amid the paraphernalia in his chambers, Ziskrout says, “You know what’s nice about this type of job? It gives you the opportunity without getting a big head about who you are and what you do to once in a while make a difference in somebody’s life. “And that’s a real good feeling, to feel that because you were there and you took a little more interest and you really tried to think about the situation, that somebody is going to benefit.” - SUSAN McRAE
Deportment in a court of any kind is vital. And especially in the two courts that I have dealings, dependency and LPS, if someone does not present well, that can present poorly in the judges eyes making the defendant lose their case.
When I talk about deportment I mean how the defendant carries themselves. In the case of LPS conservatorship hearings, this can be a large issue as the conservatee may appear disheveled and dirty. The conservatee may have been blindsighted by the upcoming hearing. The conservatee may come in hospital attire or not have showered the day before. If their hair and appearance is out of order this reinforces the idea that the conservatee does not know how to take care of their ADLs. The conservatee and the hospital staff should make an effort to have the conservatee prepare.
Another issue with LPS conservatee is that they may talk to themselves or present as hearing voices. I have seen several conservatees who were rolled in believing that they were going to win their hearing, but were talking to themselves constantly. The conservatees would talk about jesus or conspiracies. Even though it sounds out of a movie, conservatees will carry on conservations despite facing a hearing. These conservations may seem logical for the conservatee but in reality they are often disorganized and makes the conservatee appear even more "crazy".
In the realm of dependency court, the defendants, the parents, must remember to remain calm and not lose their temper. Dependency court especially in the early stages are confusing and angering. The parents may have read their detention report and saw some unsavoury facts. These may have made them cry out loud or cuss and yell. Even though the feelings within may make a parent want to cuss and shout, it is very important to talk to their counsel and remain calm. See if they can hold it in until they reach a private place. You never know who is watching.
Even though the judges are to make an impartial decision based on facts and evidence, many judges are biased or rubber stamp judges and seeing public outbursts of emotions do not help anyone's case.
That is my PSA for today.
LPS conservatorship hearings and juvenile dependency hearings have one thing in common. They are both almost always closed to the public. This means that the public cannot enter or watch a proceeding unless they are a party to the case or they have prior court approval. In both courts one must be either the main party or an approval family member to be able to attend.
For LPS conservatorship proceedings the primary reasoning is that the court system wishes to protect the patient's rights and by allowing the proceedings to be open to the public then the conservatee's privacy may be breeched.
In the realm of juvenile dependency court the court argues that the child is a minor and therefore any information regarding their legal status must be protected.
With juvenile dependency hearings this has garnered a great deal of unwanted attention and criticism as many believe that the court may be breeching best practice and by not allowing the public to observe they allow themselves to continue unchecked.
There are several issues with this that I would like to address...
First with LPS conservatorship, it should be allowed to be open to the public under certain circumstances. Take for example if legal students or nursing students need to prepare for the legal aspect of their training being able to attending a few hearings will help them see and hear what happens in a courtroom. There is a large difference between reading laws and codes and being able to sit in a courtroom and see how the judge and conservatees behave. It is important to see on average how long counsel has to prepare with the conservatee. By knowing the time limits, any potential counselor can learn how to scan a file, discuss, and prepare the most important issues. Also students can also learn what questions the conservatee tend to ask their counsel. All of this can prepare students to be the best advocates for their clients.
In the matter of dependency court, it is a harder line to draw since there will be very sensitive information being relayed during the hearing. Drug abuse, child abuse, and neglect may be discussed in detail. Should a student be allowed to attend these hearings, they should be privy to how short the proceedings are. They should observe how quick the jurisdiction hearings occur and how little time is allotted to the parent to defend the alleged abuse. It is important that they learn that more often than not the jurisdiction and the dispositional hearing occur at the same time.
Students should also learn how to deal with argumentative parties with both kinds of hearings. With LPS hearings they should learn how to effectively communicate with delusional or depressed conservatees. In the area of dependency court they should know how to calmly talk to parents who have had their children recently removed and thus very emotional. They need to be able to see the hearings and learn how to clearly describe what will happen at each one and what the parent should do to best advance their case.
In my opinion I also believe that students should get a feel for each of the different judges. Each judge will be known for a certain temperament and tendency to lean one way or another. By sitting in on hearings these students will be able to see how each judge rules and prepare them to litigate in a way that pleases a certain judge for future cases.
nonsense that needs to stop now
Although many people will tout the importance and goodness of foster parents especially other ones, but the truth needs to be had. For every good foster parent out there there are quite a few bad ones who are out there for the money. The ones who do not care about the children enough or the ones who collect so many children that they cannot give each child the individual attention that they deserve..
Then there are the foster parents who wish for the parents to have their rights terminated. They want the children "for themselves" and the parents' reunification efforts pose a threat to their desires. The parents may be working their plans but the foster parents may fabricate lies or prevent visits from occurring. Even if the foster parents do want to support reunification, they should at least not create blockades for the parents. These foster parents do not have the right to be the judge jury and executioner. Because they hold higher status in the court's eyes due to their financial and experience, they should be aware of the weight they carry in the case.. Should the parents mess up, it is the duty of the foster parent to be a neutral party to report only facts and the case worker and the court to levy any sanctions.
Comments that celebrate TPR or parents' losing their rights or case are strongly discouraged. They do not help anyone and teaches the child to be against his or her parents. The child should be allowed to decide how to view their parents without undue influence. When the child has the parents judged by foster parents, the child may feel confused, invalidated, or angry at the foster parents for judging their parents. They may feel despite the issues surrounding their case, they still love their parents and any interference or outside judgement is wholly inappropriate. Bio parents also face enough judgement. Do not add to that. Let the judge and their caseworker be the ones to yell at them.
Another issue is do not force the children to call you mommy or mom. If they say it of their own volition that is ok, but forcing them to call you mommy or daddy without allowing them to figure out who they wish to associate as their primary caregiver is unfair to the bio parents and the children. Children are already confused enough by this process... do not add to it even more. Also acting like you are the primary mother and showing displays of overt affection during a visit is also unnecessary. The bio parents feel enough shame about not being allowed to spend more time nurturing their children, please do not humiliate them more.
....and finally do not fabricate lies and try and have them submitted to court. This helps no one.
Thank you that is all for today.
Juvenile Dependency and