The California Welfare and Institution’s Code is the operative law in Dependency cases, which includes cases of abused, neglected, or at risk minors. In a Dependency case, the local Department of Children and Family Services (DCFS) or Child Protective Services (CPS) alleges that a parent’s conduct places a child at risk of abuse or neglect. The social workers have a lot of power that they abuse. When the proper procedures are followed DCFS can have your child removed from your home and placed in foster care. Too often, children are removed from their parents care and custody by social workers based misrepresentations to the court. Kyle R. Puro, Esq. worked on the front lines and knows the nuances and finesse of Dependency Law. It is his mission to get your children out of the system as soon as possible.” Steven- Los Angeles
What is Dependency Court
When a minor is dependent on the government to protect against a parents abuse or neglect. It is also referred to as the foster care system, social worker court, or youth in need of care.
The Right to Parent without the Government vs. The Government’s Duty to Protect Children
The battle being fought in Dependency Court is one of important constitutional issues. The United States Constitution gives individual’s enumerated rights, such as freedom of speech, assembly, and to bear arms. The Constitution also gives individuals unenumerated rights. That is, those rights so engrained in our culture that the founding fathers of our country did not write them into the constitution because they are so fundamental to being an American citizen. For example, a fundamental liberty right would be the right to procreate. The fundamental liberty right triggered in a Dependency Case is your right to parent your child as you see fit without interference of the government. The state has a duty to protect a child’s health, safety, and welfare from abuse and neglect. The battle being fought in the foster care system is a collision of the right to parent verses the state’s duty to protect children from abuse and neglect. So when a social worker shows up on your front door step, they are an agent of state assessing whether they have a duty to protect your child from you.
Where did this Social Worker come from?
In Los Angeles County, LA DCFS or CPS gets about 160,000 referrals a year for child abuse and neglect on their hotline. These referrals come from teachers, police officers, therapist, jealous neighbors, and all other sorts of people. Once a referral is received, a social worker will be dispatched to investigate the referral and determine if abuse or neglect has occurred. Based on their finding, you may find yourself in court. It is important to be respectful to the social worker and dispel there concerns.
What Does the Social Worker Want?
While investigating a referral, a social worker will interview you, your children, neighbors, friends, police officers, teachers, and many others to determine if abuse or neglect is occurring. It is important to treat social workers with courtesy. The customer service they provide you may seem like that of the TSA at the airport. But blowing off the social worker, you may force them to file a petition in court. Be aware social workers are trained to catch people in lies. If a social worker comes to your home for a referral, you do not have a right to a court appointed attorney. Immediately contacting an attorney to help guide you through the investigation may save you a lot of heartache.
After talking to everyone, the social worker will either close the referral, offer you an informal contract or safety plan to avoid filing allegations in court, or file allegations with the court. The two former are always more desirable. If the social worker decides to file formal allegations against you in court, they will compile all of the statements of witnesses and your children into a social worker’s report. Even though it is mostly hearsay in the report, it comes into evidence and can be considered by the judge. Therefore, what you and others say will be used against you in court. The initial court report being generated by the social worker is called the Detention Report.
The social worker’s reports are the hardest things for parents to read because they contain fragments of statements and misrepresentation drafted by the social worker that is intent on proving their allegations true. They are heavily relied upon by the judge and dictate what is going to happen to your children. Working with an attorney about your statements to DCFS can make or break your case.
Welfare and Institutions Code is the governing body of law when children are involved in the foster care system or with county social workers. In Dependency Court, Judges not juries, make a determination if children are abused or neglected as described by Welfare and Institutions Code Section 300. The standards of proof for a Judge to take jurisdiction over your child and remove them from your care are very lowest in American law. You must know your rights, how the systems works, and make the right choices to get your children back and get out of the system for good.
Dependency Court Players
Dependency Court is unique. The courtroom is often made up of a panel to accommodate the many parties to the action. Each party has their own agenda and way of assessing your case. Knowing the function and thought processes of each party on the panel will assist you in understanding and accepting the frustration that your case will bring. Below find a key list of the parties:
Judge: Decides the fate of your children. It is the Judge’s duty to apply the law and make decisions for your children based on their best interest. The Judge must apply the Welfare and Institutions Code and California Supreme Court and Appeals Court case law to your case.
Minor’s Counsel: Court appointed attorney to represent the wishes of your child and that makes recommendations to the Judge based on what they feel is in the best interest of your children. Just because your child wants to come home does not mean that the minor’s counsel will recommend it to the Judge. You are not able to pick or pay for a private minor’s attorney in Dependency. Judges often rely on minor’s counsel as a crutch to their decisions. It is wise to have an attorney that works well with minor’s counsel and knows how to address their concerns.
County Counsel or District Attorney: These attorneys represent the social workers and prosecute the case to the judge. It is important that your attorney is able to communicate effectively with county counsel because they cannot communicate directly to your social worker. The county counsel must get the social workers approval before entering into any plea agreement.
Social Worker: While rarely in court, they are represented by the County Counsel or District Attorney, who most advocate for their legal recommendations to the court. The social worker will report to their supervisor your statements and compliance with court programs before determining what to recommend. It is vital to your success in court to develop a respectful relationship with your social worker. This means keeping your real opinion of them to yourself and your lawyer. Think of social worker as a county assessor of risk and liability to the county first and then your child.
Mothers’ Attorney: An attorney will be appointed to represent any mother in the case. Some court appointed attorneys are great advocates and effective communicators. Others are too overwhelmed to deal with your case and lack to experience and courage to stand up for your rights. Consulting with a private attorney and determining the costs and benefits is a conversation that needs to happen. A private attorney can give your case more attention and give you the time your case needs.
Fathers’ Attorney: An attorney will be appointed to represent any father in the case.
Court Appointed Special Advocate (CASA)-A CASA may be appointed to assist a minor with services and report back to the court.
Types of Dependency Cases Overview
First Hearing-Arraignment Hearing
The arraignment hearing is the first and one of the most crucial in your case. The social worker will notice you to be in court for this first hearing. At this hearing, you will be provided with the child abuse allegations against you in a social worker’s report called a Detention Report. You will have to enter a denial to the allegations at this hearing unless this is not the proper state or venue to hear the matter. The court must determine if that on an emergency basis enough evidence exists in the social worker’s report to show prima facia evidence that the minor is at risk of harm. If you do not have an attorney, the court will appoint you an attorney at this hearing. If you are lucky, you will get to spend an hour going over your case with your court appointed attorney. It is wise to have a private attorney prior to this hearing.
Standard of Proof: If based on a reading of the social worker’s report prima facia evidence exists to show that the minor is a child described by W.I.C. 300 and that no reasonable means exist to protect the minor, the court must remove the minor from the parents care and custody. The Judge must also find that the social worker made reasonable efforts to prevent the removal.
In legal terms, prima facia translates to “at first glance.” This means that the court must consider everything written in the social workers’ Detention Report as being true. So all of the misrepresentations the social worker makes must be considered true at the Arraignment hearing. A certain bench officer once said, “What a cop needs to get a search warrant, I need to remove your children.”
A Judge will either remove your children from your care or order them in your care subject to court supervision. If a child is removed, they are either placed in a foster home or with a relative.
If the children are removed from a parent, the court must order a visitation schedule or find that visitation would be detrimental to the minor. Generally, visits are either monitored, unmonitored, or unmonitored visits that include overnights. If visits are monitored, you are starting the case from a weak legal position. Your visitation schedule is a strong indicator of how long it will take to your children back in your care.
If the children are removed from your care, you have a right to a no-time waiver adjudication. This must occur no more than 15 court dates from the time the child is removed from your care. It may not be best for your defense to have a no-time waiver adjudication. Consultation with an experienced Dependency lawyer is highly advised.
Defenses at Arraignment: The best defense is that reasonable means exists to protect the minors. For example, there is now a restraining order in place, you moved in with your parents, or other court ordered services can be put in place to prevent the minors from going into foster care.
Pre-Release Investigation (PRI Hearing)
Pre-Release Investigation (PRI) Hearings are not favorable by some courts because they take up space on busy court calendars. However, they do have the purpose of transitioning a minor’s placement from foster care to relatives. If your children are placed in a foster home, there is a lot of red tape to get them out and placed with relatives. All relatives seeking placement of children in foster care, must live-scan and have their home pass ASFA standards. ASFA is federal law that requires an investigation of your home’s safety before placement. For example, no child molesters live in the home and it has working smoke detectors. This process includes background checks. If you have a criminal conviction, you may require waivers and letters of recommendation. This process can take months.
The PRI is a hearing to determine what relatives are available and hopefully speed up the process of getting minors placed with relatives. It would be smart to find what relative is best situated to obtain placement of the minors based on their likelihood to pass ASFA.
The social worker has an ongoing duty to assess relatives and place minors in foster care with safe relatives. The social worker’s duty to place with relatives has been known to fall through the cracks. Too many relatives are passed over for foster parents who already have their papers processed. The longer that a child is placed in a certain home, the harder it is to switch that placement. You need an aggressive attorney to screen relatives and get the proper information to the court and social workers about your relatives.
The Adjudication or Jurisdiction/Disposition Hearing
When the court states that an adjudication will be held, it means that a trial to determine if the allegations against you are true or false will occur. This is often referred to as a Jurisdiction Hearing. At the Jurisdiction Hearing, the court determines if enough evidence exists to find the allegations against you true. If the court takes jurisdiction over your family, they are subject to the power of the court.
Jurisdiction Standard of Proof. The burden of proof rests with the social workers to demonstrate to the court that by the preponderance of the evidence the allegations of child abuse or neglect made against you are true. Preponderance of the evidence means that the allegations against you are “more likely than not true.” Certain bench officers refer to preponderance of the evidence as the “50.1% rule.” This is a puny burden of proof. Daily, conservative judges use this standard of proof to find baseless and misleading allegations by social workers true.
For the court to take jurisdiction over your family, they must find that the child has suffered or is at a substantial risk of suffering harm, pursuant to Welfare and Institutions Code Section 300 (a,b,c,d,e,f,g,h,i). The emergency jurisdiction taken over your family at the Arraignment has now become exclusive if jurisdiction is taken by the court.
Types of Abuse Allegations and Common Defenses
Serious Physical Abuse Cases 300 (a)
- Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, “serious physical harm” does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.
These cases typically are file by social workers if there has been any form of child abuse or domestic violence where the child was present. It is very important to get a 300 (a) count dismissed because it forces you to register with the Department of Justice as a registered child abuser, which can harm employment opportunities.
The elements are as follows:
- The child suffered or is at a substantial risk of suffering serious physical harm.
- The harm caused or likely to be inflicted was non-accidentally inflicted
What constitutes a non-accidental injury?
It is a question of intent. If you intended to harm your child or someone else and you somehow harm your child that would constitute nonaccidental. For example, you attempt to hit your wife and your child intervenes and is punched and receives a bruise.
What is serious physical harm?
Serious physical harm is great bodily injury, lesser injury repeatedly inflicted, or risk of such. (In re Moriah T. (2008) 159 Cal.App.4th 428, 436-437.)
“Small children are not to be hit with hard objects, especially to the point of leaving black and blue bruises.” (In re A.E. (2008) 168 Cal.App.4th 1, 4.)
Disciplining a three year-old with belt strikes on the stomach and forearm, leaving deep bruising was sufficient evidence of physical abuse. (In re Martin T. (2008) 159 Cal.App.4th 428, 438-439.)
Defenses: Include if the incident was isolated, if any injuries or marks occurred, and what was the context of physical abuse.
300 (b) Neglect and Failure to Protect Cases
By far the most common filings by social workers are 300 (b) cases. These cases include alcohol abuse, marijuana abuse, methamphetamine abuse, domestic violence, physical abuse, failure to protect from the other parent, mental health, leaving minors unsupervised, and sexual abuse.
(b) (1) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family. Whenever it is alleged that a child comes within the jurisdiction of the court on the basis of the parent’s or guardian’s willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parent’s or guardian’s medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by an accredited practitioner thereof, and shall not assume jurisdiction unless necessary to protect the child from suffering serious physical harm or illness. In making its determination, the court shall consider (1) the nature of the treatment proposed by the parent or guardian, (2) the risks to the child posed by the course of treatment or nontreatment proposed by the parent or guardian, (3) the risk, if any, of the course of treatment being proposed by the petitioning agency, and (4) the likely success of the courses of treatment or nontreatment proposed by the parent or guardian and agency. The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.
The requirements for a 300 (b) case include: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the child or a substantial risk of such. In re Roco M (1991) 1 Cal. App. 4th 814.
One of the most common statement that a parent makes is: “But I have a medical marijuana card so why does the social worker care if I smoke marijuana?” The court’s reply is “so what alcohol is legal and people abuse that.” I overturned a Los Angeles Superior Judge in a medical marijuana case because of this narrow thinking. Marijuana cases come down to a connection between your use and risk of harm to the children. The operative issue is whether you are an abuser or a user.
In re Destiny S. (2012) 210 Cal. App.4th
”It is undisputed that a parent’s use of marijuana “without more,” does not bring a minor within the jurisdiction of the dependency court. (In re Alexis E. (2009) 171 Cal.App.4th 438, 453, 90 Cal.Rptr.3d 44; italics in original.) The same is true with respect to the use of hard drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814, 817, 825–826, 2 Cal.Rptr.2d 429 [mother’s cocaine use standing alone was not sufficient basis or jurisdiction under section 300, subdivision (b) ]; and see In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2, 156 Cal.Rptr. 262 [father’s alcoholism alone did not support jurisdiction under section 300, subdivision (b) ].) Instead, the DCFS had to present evidence of a specific, non-speculative and substantial risk to Destiny of serious physical harm.”
However, the court can take jurisdiction over marijuana cases.
Parent using medical marijuana, exposing the minor to the smoke and the parent’s behavior under the influence was ground as jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451-452.)
In marijuana cases, the court tends to focus on the manner of use and if the children have been exposed to marijuana smoke. For example, if pot brownies or bongs are left within access to the child the court will find the minor to be at a substantial risk of harm.
If you are found to place your children at risk due to substance abuse, it is often best to enroll in a DCFS approved substance abuse program and random and on-demand drug testing to get them off your back.
Alcohol, Methamphetamine, Crack/Cocaine Cases, and Other Substances
One of the unpublished case that I won in the Court of Appeals had to do with a parent’s methamphetamine use. In that case, the father had tested positive for methamphetamine. However, his children were well taken care of and properly supervised. Client was not using meth around the children and no evidence that his children were at risk existed from his use. The argument was that since the children had not suffered any harm, what was the risk of harm? Recent case law has directed judges to determine if parents are substance abusers or substance users. It doesn’t matter if a parent is using nicotine, valium, Vicodin, marijuana, ecstasy, alcohol, methamphetamine, or cocaine. The legal question is does the parents use of these drugs rise to the level of creating a substantial risk.
If you are found to place your children at risk due to substance abuse, it is best to enroll in a DCFS approved substance abuse program and random and on-demand drug testing.
Mental Health Cases
Mental illness alone is not enough for jurisdiction unless CPS can show it caused harm to the child. In re A.G. (2013) 220 Cal.App.4th 675, 683-685. “The Department has the burden of showing specifically how the minors have been or will be harmed and harm may not be presumed from the mere fact of mental illness of a parent.”In re David D. (1994) 28 Cal.App.4th 941, 952. In layman terms, this means that DCFS must show a nexus or connection between any mental health alleged and harm or risk of harm to the child.
However, mental illness can be established by lay witnesses or description of the parent’s behavior. (In re Khalid H. (1992) 6 Cal.App.4th 733, 736-737.)
If you are found to place your children at risk due to mental illness, the court will likely require the following: psychiatric and psychological evaluation, to take all prescribed medication, to attend individual therapy to address mental illness and case issues. Too often therapist and doctors are unwilling to write on paper or communicate to the social worker your present mental state, due to their own liabilities. Thus, it is important to enroll with the right therapist and evaluators.
Domestic Violence Cases
Probably the most common type of case along with substance abuse in the system. These cases can have a profound impact on your ability to see your child. See the section on domestic violence. It is best to immediately get in services to address domestic violence. Most perpetrator classes last 52 weeks.
The disposition hearing, is basically your sentencing date in Dependency Court. The court has to determine if your children can be safely returned to you, what visitation you should be ordered, if you get the right to reunify with your child, if a hearing should immediately be set to select a permanent home for your child, and what court ordered service you are ordered to participate in order to reunify with your children. All of this will occur at your disposition hearing.
Disposition Standard of Proof: The court must return you children to your care unless the county can show by clear and convincing evidence that the minors physical and emotional well-being would be placed at a substantial risk of harm if placed with a parent. Clear and convincing evidence can be translated to mean that “without a substantial doubt, the kids can safely be maintained in the home of a parent.”
Court Order Services:
If the court removes your child from you at the disposition hearing, as a general rule, the court must then order family reunification services to fix the problems that brought the family before the court. Services typically ordered by the court include, but are not limited to the following: parenting class, anger management, domestic violence 52 weeks for perpetrators group counseling, domestic violence for victims group counseling, individual therapy, substance abuse program, drug and alcohol testing, Alcoholics and Narcotics Anonymous with a sponsor, mental health counseling, psychological evaluations. You will be required to complete these programs and make significant progress to get your children out of foster care and back with you.
As an analogy, think of what happened with a person gets a DUI. The court takes away their license until they complete rehabilitation classes like AA and an alcohol abuse program. The disposition case plan is not different than that. The only difference is that if you want to get your children back you have to complete the disposition case plan and show that you take responsibility for your actions and can demonstrate the stability and insight to keep your children safe.
It is vital that you enroll in the right services, complete them, and demonstrate the right attitude to your social worker after disposition.
Placement of Child with Parent Who Did Nothing Wrong
If you were non-offending and non-custodial in the jurisdictional part of the case, then you a strong chance of having your child placed with you. Trial courts often wrongfully interpret non-custodial to mean that you did not have significant custody or visitation with your child. Pursuant to 361.2, if you were non-custodial at the time the events arouse that brought the family before the court, you are requesting custody of your child, then the court must release your child to you unless DCFS can show by clear and convincing evidence that it would present a substantial risk of detriment to the minor. Recent case law, has found no substantial risk of detrmiment when a 13 year old child has never lived with her father, does not really know him, and did not want to live with him. Therefore, your lack of a relationship with your child should not stop you from obtaining custody, while the other parent is addressing their issues in family reunification.
The court will order visitation to occur. The visits may be made monitored. If visits are monitored they could occur at the DCFS office. It is likely that visits would only be three hours a week. It is best to have a friend or relative live-scan for the social worker and be assessed to be your monitor before the Disposition Hearing. If you have a DCFS approved monitor, then monitored visits can occur more frequently than three hours.
The court orders visits based on a progression. The first visits are monitored, then once trust is built up through compliance, unmonitored visits, then overnight weekends, and then return. The social worker is given discretion to liberalize your visits. It is better to have the social worker liberalize your visits. You should work with your attorney on getting your visits liberalized.
Types of Review Hearings After Disposition
After the court takes jurisdiction of your family and orders a disposition case plan, a review hearing must be set. The analogy is that after disposition, you are on probation and being supervised by the social worker and court to assure the conditions that lead your family to be brought before the court are addressed and fixed.
Summary of Important Terms for Review Period
Family Maintenance Services (FM)- This means that the child is safely living with a parent subject to the supervision of the court.
Family Reunification Services (FR)- The court must focus on putting services in place to reunify children with their parents. Family Reunification means that the child is removed from both parents care. If you have a child under 3 years old at the time of disposition, then you can have as little as six months to make progress in your court-ordered programs of the court can terminate your FR and set an adoption hearing. The maximum amount of time that you can have FR is 18 months. In some occasions I can be 24 months if you are in an impatient rehab facility. The reason that FR has time limits is due to the state’s interest in finding a child a permanent home and getting them out of the system.
Enhancement Services- If you have Enhancement services it means that the child is safely residing with the other parent. The social worker is not required by law to give you reasonable services. The clock is not ticking for the time limits of FR if you are in Enhancement Services. Therefore, if your child is with the other parent and the case open for two years and is then placed in foster care, it does not mean that an adoption must be set.
A 364 Review Hearing-If a child is ordered by the court home-of-parent, then a 364 reviewing hearing is set. Typically, these hearings are set every six months. At the hearing, the social worker will make a recommendation to either close the case or keep it open. You have a right to set the case for trial if you do not like the recommendation. The standard to keep the case open at a 364 hearing rests with the social worker to prove that the “conditions that brought the family before the court still exists requiring court supervision to assure the safety of the minor. At this hearing, the social worker must also show that reasonable services were provided.
366.21 (e) Hearing– If the child is removed from both parents, the first hearing set after disposition is the 21(e) hearing. By law the hearing must be set six months from Disposition. If you have a child under 3 years old at the time of disposition, then you can have as little as six months to make progress in your court-ordered programs of the court can terminate your FR and set an adoption hearing. The social worker will prepare a review hearing report that addresses your compliance with court orders, visitation, and updates about the status of the case. These reports are always peppered with misrepresentations and written at the last minute. It is important that you provide your social worker with progress reports from your program so this report indicates your compliance. The report will have a recommendation if your child can safely come home or not. If you have monitored visits at this hearing still, it may be difficult to get your child returned. You have a right to set a trial if you do not agree with the recommendation.
366.21 (f) Hearing- This hearing must occur no later than 12 months from the time the children are removed. It is essentially the same rules as the 21 (e) hearing. If you still have monitored visits here, are not in compliance with court orders, then the court can set an adoption or permanency hearing for your child.
366.22 Hearing- This hearing must occur 18 months from the date that the child is removed from your care. It is the end of the road of the state focusing on reunifying your child with you. The court must either return your child to you or terminate your FR and set a hearing for adoption or permanency. You have a right to set a contest if you disagree with the social workers’ recommendation. If you have monitored visits here, it will be difficult to get the judge to agree to send your children home.
366.25 Hearing- This hearing rarely applies. It allows for 24 months of FR if the parent was incarcerated or is in an impatient facility and a substantial likelihood exists at the 22 hearing for return.
366.26 Hearing- At this hearing, DCFS and the court are focused on finding a permanent home for your child. Permanent plans for children are either adoption, legal guardianship, or planned permanent living in foster care. If your child is adopted, your parental rights will be terminated. If your parental rights are terminated, you will not have any legal rights to visits your child. DCFS pushes family members towards adoption because the funding for adoption is paid for by the federal government.
A legal guardianship preserves your parental rights. It can be undone at a future date with the filing of a successful 388 motion. If your child is with a relative, it is desirable to do a guardianship.
Your defenses at an adoption hearing are limited. All the state has to prove is that your child is adoptable. For your to stop the adoption, you must show that a special and unique bond exists between you and your child that by severing your parental rights it will be emotionally damaging to the child. Case law makes this defense very difficult to show.