JUVENILE DEPENDENCY ("CHILDREN'S COURT")
CASES:
YOUR CHILD STOLEN
ON
THIS PAGE:
A.
Introduction: The Usual Fact Pattern Underlying A Juvenile Dependency (“Children’s
Court”) Case, And The Usual Questions That Follow
My
child fell off of a swing, and got a long gash over his right eye. Obviously, I immediately took my
child to the doctor.
At 3:00 a.m. the next morning, a social worker and two police officers made an unannounced visit to
our home. They accused me of abusing my child and, even though they had no warrant, they took my
child away.
On the first day in dependency
court, the judge told me that the court will appoint an attorney for me, or I can get my own private
lawyer.
They also arrested me, but the criminal action was dismissed for lack of evidence. But right after
that, the dependency judge used the identical evidence to find that the identical allegations
against me were true.
B.
Can they seize my child, without warning, and without a warrant?
Amazingly,
yes.
Even
if the county has nothing more than a mere “reasonable cause for believing” that your child is
at risk, the county can: (1) seize your child: (2) without a warrant; (3) without warning; and, (4)
at any time of the day or night.
Nazi
Germany had the SS. Cold war Russia had the KGB.
California has the county Children’s Protective Services, or whatever other label they happen to
be using in your county this week. Tradition lives on.
C.
What constitutes sufficient “reasonable cause” to seize my child that way?
Very
little.
Children
can be seized, based on nothing more than the unsubstantiated statements of a disgruntled neighbor
or relative. Indeed, such allegations are becoming increasingly popular among separated parents, as
a tool to seize full custody of the children from the other parent, at county expense.
Further,
various professionals, including health care providers and school teachers, are required to report
any basis for suspecting that a child may be at risk. They
face severe legal consequences if they fail to report. Hence,
when in doubt, they have substantial motive to err on the side of caution.
Therefore,
you and your child risk an unpleasant visit from the county, every time: (1) your child visits the
doctor or goes to school with any kind of bruise or injury; and, (2) every time you have in your
life a disgruntled neighbor, relative, or co-parent.
D.
What remedies do my child or I have, if my child is wrongfully seized?
Probably
none.
The
county is virtually immune from lawsuit in this situation. The county is also thereby virtually immune from accountability.
E.
So, what should I do when the county comes knocking?
Cooperate
fully.
As
suggested above, the county has vast power to take your child away, and virtually no accountability.
Hence, resistance is futile.
And
probably counterproductive. When government workers
have this much unbridled power, opposing them is unlikely to get any favors from them.
Indeed, some forms of resistance will be an invitation to the county to send badges and guns
to come take you away, as well.
Your best bet, therefore, is unfettered cooperation while the county comes knocking. And an
immediate phone call to your lawyer thereafter.
F.
How can the dependency court find the accusations to be true, when the identical evidence was
insufficient to prove the identical accusations in a criminal case?
The
answer to this question has two parts, as follows:
(1)
The
standard of proof
in dependency cases is lower than that of criminal cases.
The
standard of proof is different in these two courts. To
find allegations against you to be true, the criminal court must so find "beyond all reasonable
doubt." Simplistically, that means the court must be sure enough to bet someone’s life on its
conclusion. The dependency court, however, needs only to so find by a mere
"preponderance of the evidence." Simplistically, that means the court only needs to be
convinced that the allegations are only slightly more likely than not. Hence, evidence may not be strong enough to sustain a criminal finding, but may
still be strong enough to support a finding in children’s court.
(2)
Public opinion lowers the practical standard of proof yet further,
to "guilty until proven innocent."
Public opinion lowers
the practical standard of proof yet further, by placing pressure on the court to find such
allegations true, regardless of how weak the supporting evidence may be.
Any court will be ineffective, unless the public has faith in the court’s
decisions. This causes substantial pressure on the court to avoid any adverse publicity that would
erode that public trust. This, in turn, causes similar pressure on the court to cater to public
opinion.
Unfortunately, current public opinion rushes to condemn anything labeled as child
abuse, whether or not any child abuse, neglect or abandonment has actually occurred. This pressures
the court to cater to that public perception, regardless of its accuracy. The court is thereby
inclined to err on the side of caution, by finding allegations of child abuse to be true, in spite
of insufficient supporting evidence.
Hence, contrary to
criminal actions, children’s court actions function as though the standard of proof is “guilty
until proven innocent.”
G.
I’m told that the court will appoint an attorney for me, or I can get my own private
lawyer. Which is better?
Here
are the major advantages and disadvantages of each:
(1)
Cost.
The
county will pay for most or all of your attorney’s fees for a court appointed lawyer.
You must pay all the fees if you retain a private lawyer.
(2)
Personal attention.
Court-appointed
attorneys usually maintain a case load in excess of 200 cases. They are paid substantially less than
are private attorneys. Their compensation is unaffected by the personal attention they give you.
And, since they are employed by the county, they are accountable only to the county, rather than to
the parent. Further, the attorney assigned to you can change at any time, any number of times. They
therefore have little or no time, financial incentive, motive, or ability, to give you or your case
much personal attention.
Private
attorneys have far fewer cases, are paid more, and have accountability only to their clients. They
therefore are more likely to have the time, financial incentive, and motive, to give you and your
case the personal attention that both deserve.
(3)
Conflict of interest.
Court-appointed
attorneys often work in the same courtroom, before the same judge, with the same attorneys and court
staff, every day. This creates a substantial motive for
the attorney to choose a behavior and strategy likely to allow the attorney to get along with
everyone else. Even if the behavior and strategy do not promote the best interests of yourself
or your child.
Private
attorneys have no such conflict of interest.
(4)
Competence.
Court-appointed
lawyers in children’s court are the only lawyers in California that have minimum continuing
education requirements specific to this area of the law. Even
lawyers representing criminal defendants in death penalty cases have no such requirement. Hence, court-appointed
lawyers usually meet this requirement, while private attorneys usually do not.
This
minimum requirement, however, means only that the attorney's body must be present somewhere near the
vicinity of the continuing education classes when they occur. Nothing more. Hence, it guarantees
nothing about the attorney's actual competence.
Further,
the attorney assigned to you can change at any time, any number of times, without notice to you or
predictability of any kind. And every time your lawyer changes, your new lawyer must re-learn all
the facts and circumstances of your case from scratch. Hence, the actual competence of your
court-appointed attorney today, has no relationship with the competence of your court-appointed
attorney tomorrow.
Finally,
many court-appointed lawyers spend all day, every day, in court. Very few private attorneys have
anything even approaching this level of experience. Hence, if you choose to retain a private
attorney, it is essential that you verify that attorney’s experience in this area of the law.
