December 06th, 2018Read Now
I would like to take a break from discussing LPS conservatorship hearing for one set of posts. This month has been a bad case of dead courtrooms. My client is pending trial and we are in the process of seeing if discovery was processed and waiting on his reevaluation for LPS conservatorship. We also have not received notice of trial but that is a matter I will have to look into at a later date. I would like to address a entirely different kind of court far away from mental health court. I choose LPS conservatorship because it is a relatively obscure area of the law. Another area of the law that is very difficult to find competent lawyers in is juvenile dependency court. Several of my clients have been tied up in this area of law for several reasons ranging from mental illness to substance abuse thus necessitating the involvement of this court.
In short, juvenile dependency court serves the children of parents who have demonstrated a inability to provide for their children or have harmed them. This court is quite different from normal family law proceedings or criminal court. With this court, the evidence rules and local rules of court are quite different making it difficult for families new to the system to understand how it works. There is a lot of research one must do to begin to understand how to navigate the laws and understand what happens in each proceeding.
A basic outline of the proceedings
It is supposed to happen within 72 hours of the child being detained. This hearing is similar to arraignment in which the parents are read or given a formal presentation of the reasons of why their children were removed. If no cause is found for removal, the children are returned to the parent and the case is closed out or lightly monitored. If there is reason for the children to be removed, the next hearing that will be to see if the allegations in the petition are true.
Jurisdiction/ Disposition Hearing
During this hearing the court will making a finding on the petition. It will either make a true finding on the petition and order services and visitation for the parents or making a true finding on the petition but leave the children in the care of the parents while they have an ongoing family maintenance service plan.
6 Month Review Hearing
After 6 months of working with CWS, the parents will be ordered back to court 6 months after the J and D hearing to ensure that they are on track with their case plan and visitation is going well. IF they have accomplished all of their requirements on their case plan, the children may be reunified and the parent may enter a probationary period. If the parents have made significant progress but are not quite ready, the court may order them to return for a one year review hearing and a permanency hearing to take place then. If the parents have not completed their services at all, the court can order that CWS no longer provide services to the family and can set a date for a permanency hearing and a selection and implementation hearing.
12 Month Review/Permanency Hearing
During this hearing the court will move to choosing a permanent place for the children to stay. The court likes to see that the children have a stable home, financial, and family to grow up with. This is called permanency. The court likes to see that children have a permanency plan by one year into services. If the parents have done all they need to by the date of permanency planning, then the parents are considered part of the permanency plan and reunification has occurred. If the parents have not completed their plan, then the court moves to terminate their rights in what is known as a .26 hearing or selection and implementation hearing.
Selection and implementation hearing
This hearing occurs if the parents fail to reunify and the court need to find an alternative for the children. In this hearing, the parents' legal rights are terminated and the court seeks one of several alternatives for the child. The child may go into foster care long term, be placed with a relative, or be adopted by their current foster care.
Now that the legal basics are out of the way, I would like to address several issues having been with clients who are on the side of working a case plan to get their children back, and the foster parents looking to adopt their foster children. In an ideal world the foster parents would support the parents reunifying if they are really working their plan and striving to improve their lives for the children. I know that often the children are better off with a foster parent. However, I speak to address the issue of when parents do work very hard to reunify and there are still roadblocks and disrespect.
The first issue I take is the court process itself. For those who are not accustomed to court it can be daunting and demeaning. It takes an degree of ease or experience with court to not be overwhelmed. Even for those seasoned with the legal world, it can be overwhelming when it is ones own child at stake. One of my clients had an old case where she was completely overwhelmed and saddened by what she read in the detention report. There were some allegations that were not true but hurtful to read none the less. Since first impressions mattered, her tears and being overwhelmed does not bode well in front of a judge. Especially ones that do not smile or look at the parents. Dependency cases need to be and should be handled with a degree of grace. When dealing with families, the cold environment of the courthouse does not foster a sense of comfort or trust, thus making new parents nervous and scared.
The next issue I take to is the actual jurisdiction and deposition hearing. The law mandates that it should be a time for the evidence in the report to be weighed and determined to be true. Since the standard of proof for dependency hearings is very low compared to LPS, many of the allegations in the petition are found to be true. The public defenders do little to contest the allegations and even if you set a trial date, it will be a bench trial with little effort to determine if the allegations are true or not. I also do not enjoy how hearsay rules in court are different and looser than with criminal proceedings.
So much paperwork. There are just year long files that bigger than the one for the guy who was LPS conserved for 28 years.
Now onto the more emotional aspect of court
If a new mother has her child removed from her care right after birth for reasons that are not drug/ abuse related it can be really hard on her as she may find herself treated as a child molester or abuser when in fact she was unprepared. She may have no history of abuse or harm, but during the investigation, she may face some investigators who question her motives.
The time periods between court dates and the decisions made also affect new parents in regards to their emotions.
"I felt like I was a kid again; everything was making me cry, and I needed a lot of love. I be feeling like, Do babies know who’s they mom? I feel like babies love whoever is giving them the milk, and I want to give the milk the whole time. I want her to know me.” “I feel better now, but sometimes I just feel so vulnerable, like I’m not ready for the world yet. It’s weird.”- Cardi on W Mag
So many women find themselves facing a flood of new emotions after child birth in which they really do need emotional support and love. There are hundreds of research papers citing how women and newborns need long hours together to bond and create a strong relationship. It benefits both mother and child to do skin to skin and breast feed. When this chance is taken away from both it negatively affects the child and mother.. I know a few mothers who found themselves broken over the forced separation and limited time with their newborns. They cited how the visceral pain and incompleteness without their children. Having been given only two hours a week with their newborn as their case took off was really detrimental to their emotion state of mind. Bear in mind that these women also have to keep face for court hearings and meetings with their case managers. It is no easy task and does take a degree of emotional strength to hold together for that long.
It also feels very unnatural for the parents. Being allowed to visit and see their child for only two hours a time each week makes the parents feel like the child may no longer be their own. When they read the court reports or hearing about their child's development but know that they are not party to such moments can really breed a sense of isolation and that they are the stranger in their child's life. The parent can feel really excluded and develop some degree of depression as a result. But again they cannot voice such feelings as they are being watched by their case worker.
There are also times when case workers will accuse the parents of certain things but not do the work to follow up on whether those allegations are true or not. In this case they can upset a parent who believes that what they are doing is the right thing. The parent may become upset at such accusations knowing that they can physically prove it wrong even though the case worker will not do the work to investigate further. The parent may be told to their face that they are "delusional or hallucinating" and "not to make things worse for themselves by lying" which again makes the parent feel really demoralized as they know in most other instances they would have some support network advocating for their abilities as a parent.
Another point of conflict is with the foster parents. As with anything there are good and bad foster parents. Ones who care about the child and help the parents reunify and ones who are controlling and undermine any efforts to reunify. In regards to the ones who do not do their job, I would like to address a couple of issues.
The ones who act like the child is theirs and wishes against reunification.
If the parent is committed and actively working their case plan, then they deserve to be given a solid chance to reunify with their children. There are foster parents who I have overheard and read online in blogs who wish against reunification. These foster parents will demonize the birth parents and make statements such as "I hope that the parents fail their plan" or "I wish TPR (termination of parental rights occurs sooner so he/she can be all mine).
"I find the use of 'gotcha' to describe the act of adoption both astonishing and offensive. Aside from being parent-centered ('C'mere, little orphan, I gotcha now!') it smacks of acquiring a possession, not welcoming a new person into your life." -https://www.huffpost.com/entry/the-insensitivity-of-adoption-day-celebrations_b_7207100
A common saying in the adoption community is “Gotcha Day”. This phrase refers to when the parent's rights are terminated at the .26 hearing and the child is available for adoption. This tends to come across to the other party as really insensitive as it connotes a .possessiveness. As in the child is "rightfully" the foster parent's child. That they deserve the child more than anyone else. In some cases yes the child is safer and better off with them. But in some cases the parent was not able to fully support the child and had their rights terminated. But this phrase gives the guise that the parent does not deserve their child in any sense. As if the foster parent snatched the child away from the birth parents. Like the child is a prize to be competed for and won. Don't forget this is a child; a new life not some award. Remember that for each gain, there is a loss on the birth parent's side. And often a enormous loss that will never be forgotten or healed.
Foster parents: Try to not make things difficult for the birth parents if they are trying hard. Try and work with schedules and planning. Don't lie on reports to the case worker. Do your part.
That is all I have on the subject matter for now. Until then...
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