The Secret: How to Fight CPS and Win
On today’s Radio show, we talk about “The Secret: How to Fight CPS and Win.” We are delighted to be joined by a special guest, Juvenile Dependency Attorney, Stephanie Davis. We’ll also talk with Caller James, whose kids are going up for adoption and all his struggles against the CPS beauracracy, Damiel about guardianship, filing multiple 388 petitions,
BEGIN TRANSCRIPT (Radio Show Transcript from January 2, 2016 Air Date)
Vincent Davis: Good morning. This is Attorney Vince Davis and you’re on the show: The Secret: How to Fight CPS and Win. Today we’re going to be joined by a special guest, Attorney Stephanie Davis. Stephanie Davis will be calling in around the 8:30 hour to discuss a very important topic that I hear about all of the time and that topic is when you’re in a juvenile dependency case and your family reunification services are terminated by the judge, what you must do and what you should do in your case. Many times, parents do not do what they’re supposed to do in order to protect their parental rights when their family reunification services are terminated. So we’ll be talking about that at around 8:30 hour. (TAG: reunification services terminated)
One of the first things that I want to discuss today is what happens at a six-month review date. If you have a trial and you lose your trial or if you have a disown — whether you’re not your disposition, you want a disposition hearing and got your children back at the beginning of the case, almost in 99.9% of the case is you’re going to have what’s called a six-month review date. And those reviews are governed by California law, California Welfare and Institutions Code Section 366.21 E and F. So if you are an internet person, you can Google those and you should stop and you should read those sections. (TAGS: six-month review hearing, 366.21 E, 366.21 F)
366.21 E governs what happens in the first six months and 366.21 F governs what happens in the second six months. At both hearings, you are allowed to have a trial where you can prove that the social worker is wrong and that your children should be returned to you at one or both of these six-month review dates. It is important before the six-month review date that you participate in the family reunification plan that was ordered by the judge at the disposition hearing. And at this first six-month review date — well, excuse me, at every six-month review date, the children must be returned to you unless the social worker can prove that you are a risk to your children.
Now generally, the social worker prepared the courts for the six-month review dates, not generally, at every six-month review date, the law mandates that the social worker prepare these six-month review reports. And in a lot of cases, the six-month review recommendation by the social worker is that the children not be returned home.
Now, here is the important part, when you see that recommendation, you have the right, I repeat, you have the right to have a trial to prove that the social worker is incorrect. A lot of people I talked to tell me that they did not — that they had a right to a trial and somehow represents just to go into court and have the case continue to the next six-month review date or have that family reunification services terminated which is a very bad thing for parents in these situations.
So remember that you have the right to have a trial and before [0:04:09 inaudible] or you should sit down with your attorney and discuss the witnesses that are going to be present at that trial, discuss what legal documents you’re going to introduce into court at that trial and, you know, generally discuss how you should be testifying and what should be expected of you when you testify both on direct examination and cross examination. So that’s our six-month review dates.
I’m going to take the first call this morning and the area code of the caller is area code 310 and it ends in the number 45. Good morning, you’re on with Vincent Davis, Fight CPS, how can I help you?
Stephanie Davis: Good morning.
Vincent Davis: Good morning.
Stephanie Davis: Good morning. This is Stephanie Davis.
Vincent Davis: Oh, Stephanie. You’re going to be our 8:30 guest, so just hold on, okay?
Stephanie Davis: Okay, no problem.
Vincent Davis: All right. That was our 8:30 guest. She was the first caller in this morning. So a little bit more about that six-month review date… If the recommendation is to terminate your family reunification services, make sure that you always try to have a trial to fight that because at the six-month review date, the social worker — (technical difficulty) — you have the right to have the judge make a determination because the judge has discretion to extend your family reunification services [0:06:14 inaudible] have to make sure that you are participating regularly in the family reunification services and that you are being successful in those family reunification services in order for the judge to extend.
I just spoke to a client, probably in the last week or so, that had been doing almost everything in the family reunification services arena and they only went to the 21F hearing, the court terminated her family reunification services except the matter for a 2-6 hearing and which is to terminate her parental rights and she did not even have a trial to try to convince the judge that family reunification services should be extended. On top of that, she didn’t file — apparently, her attorney didn’t recommend to her to file a notice of intent to challenge the termination of her family reunification services. And the time had passed when she can do that, so she’s in a deep hole and I’m trying to give her some advice, free advice to get her out of that hole.
I’m going to take a call right now. The number is — area code is 760, ends in 12. Good morning. You’re on the radio with Vince Davis.
Caller James Moreno – San Bernardino Case
James Moreno: Yeah, good morning.
Vincent Davis: What’s your name, sir, first name?
James Moreno: James Moreno.
Vincent Davis: James, do you have a story or a question for us this morning?
James Moreno: Well, yeah. I’ve been battling the CPS since 2013. My two boys were taken in by the mother’s mother, not by abused and not by neglect but the boy were — one of my boys is put in danger while she was under the influence while driving. He was in restraint. He was taken in. The next day, my littlest one was picked up by CPS and taken into foster care. I wasn’t there at the time — I was incarcerated for another offense, nothing violent, nothing to put kid in danger or anything like that. It was just something that I was going through.
Anyway, while at the time that I was incarcerated, I was fighting for my rights back and courts terminating my rights only because I was incarcerated. They said — untimely incarceration. I didn’t have time to reunify with my kids at a certain time which was 19 months. I guess kids under three years old go for six months, 12 months review and up to 18 months or 24 months depending on the age of the child. And pretty much, I lost my rights very quickly within the trial. I was able to show that I was a fit parent, that I was there for them biologically, presumed father. And they terminated my rights, they terminated the mother’s rights. And it’s been a challenge. It seems like the CPS basically does not want to help us, does not want to do anything for me as the father and basically turned their backs on me. I mean, you know, it’s like I’ve been fighting for them. I’m working, I’m out, I’ve been out already going about six months and have not — been trying to communicate with the CPS, with the social workers and it’s just been heartbreaking because I’m losing my life which is my two boys. And it’s severe. It’s unimaginable what they’re doing and what the CPS is doing and the much power that they got. They were able to come in and basically take my kids away and put them for adoption. Yeah.
Vincent Davis: Well, let me ask you a couple of questions if I may.
James Moreno: Sure.
Vincent Davis: You said your kids are going up for adoption, what — is there any relatives that could have taken care of the kids?
James Moreno: Yes, there was. My mother was — she stepped up and she got evaluated. The thing that hurt us was when the CPS, the social workers told her, because she wanted — she knew I was getting out soon, so she wanted to get custody of the boys and then I can go back home with her and raise the boys. You know, we would have been happy. But what happened was CPS stepped in and once they found out her plan, they told her that if I was going to be in contact with the kids, that they would not approve of that and that was probably, from what she said, that they told her that she could not have those kids around me until they’re 18 years old.
I found out later that that was not true but that deterred her from going through with the adoption and we were trying to get long term guardianship because I was going to be out within a few months after my last case. I was already getting out. The judges didn’t want to hear anything I had to say. I mean, don’t get me wrong, they did listen but it seems like it went to one year and out the other. They basically just really looked at me like, “You’re not out here for your kids, so basically we’re taking them from you.” That’s exactly how it went down and that’s exactly how I feel. I feel that my rights as a father had been violated. I feel that the CPS has too much power to come in and determine and dictate when they can take your kids from you. You don’t have 100% control of your family in this state or, I mean, in this whole country.
And it’s mind boggling because there’s a lot of families are being thorn apart like this and there’s nothing that we can do. Legislation has set ways into this child custody law which is not right. It’s only giving families or parents a small window to reunify and if you’re not able to reunify, whether even if it’s a month after six months, they’re going to terminate your rights, you know. And from what the social workers told me was, “The kids should not wait. The kids don’t have a voice. We’re here to protect the kids. We’re here to pick up the pieces of where you went wrong with your family.” That’s what they told me and I’m like, “Well, but still that’s not right to take my kids away. You guys are supposed to be helping families, regaining families, to do everything the best they can to regain their family or whatever mistakes they made, to overcome them,” but that’s not the case with me.
Vincent Davis: You know, was your mother the only relative out there that could have taken your children?
James Moreno: No, the mother’s mother was willing, the maternal. Well, her mother was willing to take them which she had temporary custody of them. But when the mother came to pick up my oldest one which was at that time he was under three years old, his name is Tony, she picked him up. She was at that time battling her addiction. So she picked him up. The child was in the care of the grandmother. She wasn’t home at that time, she went to get diapers with my other little one. She was gone. Mother came home, picked up the other one, took him with her and was out for a couple of hours and decided to have a drink I guess wherever she was at and basically was driving with one headlight off and cops gotten back [0:13:40 inaudible]. Basically my son was unrestrained in the front seat and that was it, that basically was it.
And later on, it came back at her, she was just right under the legal limit for intoxication but the CPS still came and did what they did. And the mother — the reason why they didn’t want to give him back to the mother, the grandmother was because the grandmother failed to protect them. One mistake and the mother was excluded from gaining adoption of those boys because she made one mistake. And that’s where I’m at. Yeah.
Vincent Davis: One of the things that I do with respect to relatives in getting the children is I have my clients generally make a list of about 25 names of relatives and close family friends. Now these people can live [0:14:31 inaudible]. They don’t have to [0:14:34 inaudible] and it’s hard for a social worker to disapprove 25 people. If you give them one or two people, they make that mistake or whatever, they can easily dismiss those people and leave the children with foster care.
If you got 25 names, it’s hard for them to ignore that. And actually and I encourage my listeners to Google California Welfare and Institutions Code Section 309 and read that about relative placement. The law says that the social worker has to investigate every relative or all relatives I think is what the code says. Usually, after you give them 25 names, they suddenly find that some of the relatives especially relatives that live in their county are appropriate for [0:15:31 inaudible]. What county are you in, sir?
James Moreno: Excuse me?
Vincent Davis: What county was your case in?
James Moreno: San Bernardino County.
Vincent Davis: San Bernardino County?
James Moreno: Yes.
Vincent Davis: Do you remember what department you were in in San Bernardino County?
James Moreno: I was under Judge Kersey which is Division — I’m not sure, it was Judge Kersey. She’s at children’s court over in Gilbert Street.
Vincent Davis: Right.
James Moreno: I don’t know what [0:16:01 inaudible]. I can’t remember.
Vincent Davis: She’s no longer there. I heard — well, I know that she’s transferred out of there and someone told me that she was in — has been sent to Criminal and there’s a gentleman in there now who’s in my opinion extremely fair and so far he’s been very conscious about trying to keep families together. You know, I want to talk to you a little bit about your case because generally, the law is, if you’re in jail for something [0:16:40 inaudible] — you’re in jail for something unrelated to juvenile dependency case, you’re not supposed to lose your children. Did you know that?
James Moreno: That’s exactly right. That is true. When I was incarcerated, we have what we call [0:16:58 inaudible] library for the inmates and what I did was I started pulling up cases. I started researching to the Welfare Institution Codes, I started pulling up old cases like the [0:17:07 inaudible], Amanda. All these cases pertain to parents that were incarcerated that should not lose it — you know, there’s no law in California where it says you go to jail, you lose your kids. But in my case was since I was doing a term that was over exceeding the time of reunification which was I was doing 19 months, I was doing a month over, I think the 18 month period where they could reunify — where the courts I guess — I’m not too sure exactly how it goes but I know it’s a six-month, 12-month, 18-month, 24-month, depending on the age of the child if I’m right. I was not able to reunify with these kids, with my children at a certain time, so what they did was they automatically right off the back terminated my rights.
Now the thing with the mother was, because she had a CPS case in the past, this is where I feel my case has been discriminated, where it’s been a piece of discretion because they looked at the mother. If you were to read my transcripts, everything is about the mother because she lost kids before in CPS which is a whole different case with two different kids who are now coming back barely after 10 years but the thing is that she’s starting to reunify with these other kids but at that time, she had lost them, the other as well for institution quotes it does state a mother that loses kids in the system before can lose kids in the system now if I explained that right. And that’s what the whole theme was about with us.
They looked at her — Judge Christy looked at her and knows who she is and has been dealing with her for over this last 10 years with her other two kids, but the other two kids are with the husband, so she had an on going child custody with the husband. To make the long story short, when they came to me, they kind of bypassed me really quickly.
They focused on her and they terminated both our rights together. They falsified documentation on me saying I was a violent felony offender when I wasn’t. I proved that later in my appeal. The appeal — Court of Appeals didn’t look at that. And I honestly feel like, you know, if I would have falsified any kind of documentation to the courts whether I was a professional or not, the courts are going to look at it like, you know, what are you doing? Fill out the case, that’s standard procedure, but it didn’t happen like that with the social workers. Social workers were able to, by hearsay, put down a lot of stuff in this report. And while I was going to the report, I couldn’t believe all the stuff that they put in there.
And don’t get me wrong, I only mistakes, there’re a lot of typos, but when it’s continuously, when it’s five different areas that are in the case, it was just heartbreaking because now I see that the CPS or the CFS is not really there to protect the parent. It’s kind of there to protect, I want to say the kids, but at the same time when your family is apart like this and when you’re not being thorough in documenting your reports or at least trying to get down to the truth and the facts, that’s when it’s heartbreaking for me. That’s when I feel like my kids are being taken from me illegally.
And that’s where it’s at. That’s obviously where it goes at.
Vincent Davis: Yeah. Well there’re two things I want to you and I don’t know if you — it sounds like you’ve done a lot of research on your own which is very good.
James Moreno: Yeah.
Vincent Davis: But did you know that when an incarcerated parent has a case because of the mother, you are allowed to make a plan for your children so that there doesn’t have to be a juvenile dependency case. For example, you could have placed your children with a relative and the case would have or should have been close as to you, you know.
James Moreno: Yeah.
Vincent Davis: Whether you are in jail or in prison and a juvenile dependency case has started because of the mother’s drug use, you have the opportunity to tell the social worker, “Hey, don’t place my kids at foster care. I can make a plan for the children and I could place the children with my mother or I could place the children with my brother, or I could place the children with my cousin. And if that relative is willing to take a — get involved and take care of the children, during the incident, you could be dropped. Has anybody ever told you that?
James Moreno: Nobody, the social workers never gave me that option. And from when I started calling them in the very beginning was so heartbreaking because they didn’t want to talk to me. I mean first, they basically took down information from me and the social workers — and mind you, my social workers have changed from 2013, I’ve had over six different social workers on my case and it seems like every new social worker, I will have to explain everything, have to come back in. And after the first one, they didn’t want to talk to me no more. They were telling me to talk to my lawyer, talk to my lawyer.
And I had an appointed attorney at that time and I don’t know if I failed to mention this, but we hired a lawyer in the beginning who didn’t do nothing. My lawyer didn’t really do nothing. One of my habeas corpus claims was ineffective assistance of counsel because all the way up to the trial, he really didn’t do anything to where it was only at the trial that he finally started saying something because I was looking at him from across from right there like saying, “Hey, say something. These people are taking my kids.” And I was getting to a point where I could not — I could not believe this was happening.
I mean don’t get me wrong, I’m 45 years old. I’ve had run ins with people that’s got their kids taken away, but it seems like they’ve always had a chance to get their kids back. And I was mind boggled that at the point where how come this is not happening for me? How come other people get to get their kids back? How come CPS — I thought CPS was supposed to help the parent to try and they didn’t do that with me?
And like I said before, because of the mother’s history and the child endangerment that she did with my son, I really feel that they — my whole case was just shunned out, put on the fast track and make sure to get these boys adopted. That’s exactly how I feel and that CPS does not help me.
Vincent Davis: Sure. So have you considered a civil rights lawsuit against the social worker?
James Moreno: Yes, I have. Yes, I have, yes. And I’m thinking — I’m doing research on it right now. I am on my third appeal right now. I’m hoping — and then my appeal keeps getting thrown back because their counsel is saying that I have no — I have no grounds for an appeal now, that my rights have been terminated. But I’m not going to stop there. I’m going to keep on.
I was relooking into a lawsuit and I have been doing the best I can with the best — whatever I have. I don’t have — the money that we did use for the attorney, that attorney — his name was John Vega, he didn’t do nothing. It’s really unfortunate that we put that much money down on somebody and he came in and basically he really didn’t do — I mean he did what my lawyer did and that was basically — and it’s really sad because I got two beautiful boys out there. I love them with all my heart and all my life and they’re everything to me. It’s like everyday I can’t believe that they’ve been taken from me and it’s just heartbreaking, it’s really heartbreaking what this country has come to and how it’s dealing with this situation. It’s just unbelievable.
Vincent Davis: You know, would you be interested in helping people in your situation [0:24:57 inaudible] with their lives and what they shouldn’t be doing because I think prison and jail who had the case, the juvenile case, maybe you and I can educate them and help them and maybe save their children from being lost in this system. Would you be interested in doing that?
James Moreno: Sure. I would do whatever I can to make sure that nobody else has to go through it, what I’m going through right now. And it is tragic. I’m going to say this right now, for people that are listening out there that are barely dealing with something like this or they know that there is a problem in their life where their kids are going to be taken, I’m going to say right now, I want to give you the best advice is to stay close to your kids, take care of them because when CPS steps in, it’s pretty much one of the hardest battles you will be up against if you don’t it right the first time. And I hope nobody has to ever go through what I’m going through right now.
Vincent Davis: So thank you very much for your call. I’d ask you to give me a call maybe on Monday or later today and I’d like to set up a meeting with you so we could start try to help people that are incarcerated and help them in keeping their families together.
James Moreno: That sounds really good. That sounds good. That sounds awesome.
Vincent Davis: You can reach me at my office number, my direct line is 626-446-6442 but you can also call me toll free at 888-888-6566 and what’s your first name again?
James Moreno: James.
Vincent Davis: Okay, James. Thank you very much for your call. I appreciate it.
James Moreno: All right, thank you too.
Free seminars in Southern California
Vincent Davis: Okay. I’m getting a message, I have to take some time right now and I have to tell our listeners about a seminar that I do every month and it’s because of the high demand, I have actually done two seminars per month and I’ve got an email this morning from some people in Ursack County asking me to come up there to do a seminar for them.
So the name of the seminar is “The Secret: How to Fight CPS and Win”. The next seminar is going to be here in Los Angeles County. It’s going to be at the Resident Inn in Manhattan Beach and that’s January 16th. The time of the seminar, it starts at 10 and it goes to about 1 PM. And after that, after the seminar, I sit down with the attendees and I give them a free consultation about their case. Sometimes the consultations last 15 to 30 minutes, sometimes it last about an hour to an hour and a half, but that’s one of the benefits of coming to the live seminar.
Again, that’s January 16th, 2016, the Residence Inn, Manhattan Beach, California and you could register, you could register for this seminar right now and you can go to www.helptfightcps.com and you can register for the seminar at that website. I think it would be a great benefit to most people to come to that seminar, to get some information, get some knowledge, learn some things to do, learn some things to discuss with your attorney, either your private attorney or quote appointed attorney and make sure that you can keep your family together.
Okay, I think the right now, we’re going to take that call from Attorney Stephanie Davis and I’m going to be asking Stephanie some questions about what to do when your family [0:29:13 inaudible] services are terminated by the court.
Stephanie has been a lawyer I think almost 29 or 30 years, as a matter of fact the same length of time as me because Stephanie and I went to law school together. We were married and we have a law firm called Davis and Davis and at that time we primarily did juvenile dependency cases, what we’re talking about here today. And subsequently, Stephanie and I got divorced and Stephanie went on to sit on the bench in juvenile court as a judge pro tem or referee in California. I think she did that for 16 or 17 years.
In my opinion, before she did that and even after that, when she’s working with me, she’s probably one of the best appellate, juvenile appellate attorney in the state of California and she’s a very well respected amongst the judges and judicial officers in juvenile court here in Los Angele County and I think also Orange County. So right now I’m going to bring her on the line.
Today’s Guest Attorney Stephanie Davis
Good morning. How are you?
Stephanie Davis: Good morning. I’m good. How are you?
Vincent Davis: Good. Did I leave anything out of your resume?
Stephanie Davis: No. I think you covered everything.
Vincent Davis: Okay. So let me ask you something, if I’m at — if I lose my trial and I’ve lost the disposition and my children are placed in foster care for six months, and a six-month review comes up, could I use my family reunification services at that six-month period?
Stephanie Davis: Yes, you can especially if your child is under the age of three. The statute specifically states that generally reunification services for children three and under are only six months. The preference is for it to only be six months unless the parent has been in substantial compliance with the case plan and the court could find that there’s a likelihood the child will be reunified with the parents during the next six-month period.
Vincent Davis: Okay. In your experience with people that have come to you which you didn’t represent at the six-month period, does this people — do these folks usually have trials?
Stephanie Davis: No, they don’t. I guess that what you might say the general practice is, is that if the recommendation is to continue reunification services for an additional six months, that generally there is not a trial held and they just submit to that recommendation and continue with the reunification services.
Vincent Davis: So they agree or submit to keeping their children out of the home for another six months.
Stephanie Davis: Correct, right.
Vincent Davis: Now, that has to be beneficial to these families if the parent is entitled to have a trial.
Stephanie Davis: Yes, they are. As you were discussing earlier, they are. They’re entitled to have a trial, what you’re calling a trial or contested hearing at every review, every judicial review.
Vincent Davis: And at that trial, what happens?
Stephanie Davis: The burden is on the department, on CPS to prove, but the burden is preponderance, preponderance of the evidence that there is a substantial risk of detriment if the child were to be returned to the parent.
The focus is to actually — the statute, the way the statute is written, the focus is actually supposed to be on return. If you look at return unless there’s a substantial risk, however that’s not really the — unfortunately that’s not really where the focus is. The focus for everyone is keeping the child from — should the child be kept from the parent not whether the child should be returned to the parent which if you think about it is, it’s subtle but there is a difference in emphasis.
So you are — when you focus on whether the child should remain, you’re looking at basically keeping the child from the parent rather than should the child be returned?
six-month review hearing
Vincent Davis: You know what’s interesting in a lot of our cases is I go to the six-month review hearing date and the social worker is recommending that the child not be returned home but the social worker is recommending that the parent have unmonitored visits with the child. Does that make sense to you?
Stephanie Davis: Yes. Well, I think that the idea is well, probably what has happened is that the parent has not had unmonitored visits before — during the previous six months probably because reunification was done so slowly that the parent never graduated — “so to speak” — to unmonitored visits. So that’s why although it’s not in the statutes that you have to go from unmonitored day visits to overnight visits to then return, that’s usually the stepping process to getting your child returned.
So if they’re recommending unmonitored visits at the six-month date, in their mind, they’re giving the parent a break, you know, they’re on their way to getting the child back, but there is no guarantee of that.
Vincent Davis: Okay, now, I have said that you are a, I call it, expert in juvenile dependency law and isn’t there — aren’t there some cases out there, in California that say, “Look if a parent has had unmonitored visits, the parent can’t be a risk to the child and therefore the child should be returned.”
Stephanie Davis: Well I think that — I don’t know if there’s a case law that said exactly that, what you’re saying, but the argument surely is and should be made that what you’re saying, that if they’re having unmonitored visits, I guess it depends whether they’re unmonitored day visits or whether they’re overnight visits, but their arguments surely should be made that they are not, that that is definitely evidenced that they are not a substantial risk of detriment.
But let me say, one of the things that makes these contested hearings or trials at the six-month review and 12-month review so easy for CPS to prove is because the statue also does say that failure to regularly participate in a program is prima facie evidence that there is substantial risk. So if the parent is not complying with the court order case plan, they generally, because of that will not have their child returned to them.
So I want your listeners to understand, you’re saying they have a right to have a hearing and that’s absolutely correct. But what they also need to be focusing on in the six-month time period is complying — completing all the terms of the reunification case plan.
Vincent Davis: That’s very, very good advice. You know, the other thing that I sometimes use the trial for at the six-month review hearing is to have the child move from a foster home to a relative placement. Sometimes, you know, at the late, at the disposition hearing that wasn’t even brought up that a parent lost the child and the child just remained in foster care. So at the six-month date, I sometimes use that to move the child from a foster parent to a relative even if the parent hasn’t done what they’re supposed to do. What do you think of that?
Stephanie Davis: That is a good use of the six-month review if your client has not substantially complied. And as you know, the sooner you can get a child into a relative home, the better off, well, the child is and the parent is because if there is foster care, the likelihood is that they’re heading towards adoption with a non-relative.
Now, the other issue with what you are trying to do with the six-month review, the case law is not crystal clear and I don’t — I think it’s still up for a debate about whether or not that relative preference that you had talked about before that exist at the disposition hearing whether that still exist at the six-month and 12-month review hearings.
Some of the case law, and I’ve had judges say this to me, some case law indicates that the preference continues until reunification services are terminated. There is one or two cases that say the preference continues until parental rights are terminated. So whether you’re going to — you still have the opportunity in some instances to try and get a child remove from foster care after at the 12-month hearing or before the time between the parental — I mean the 12-month hearing and the six-hearing or the termination of parental rights hearing.
But again what you’d have to understand is the level of success may not be that high because one of the factors that the court has to look at is how long that child has been in the foster home and whether or not they’re bonded or attached to that family and then there’s a balancing about what’s in the best interest of the child, so all of those things come into play.
So you’re absolutely right. If you could do it, if you could try to get the child removed from foster care and placed with a parent at the disposition, that’s ideal. And the next best thing is to have it done by or at the six-month review hearing.
Vincent Davis: What’s your experience with seeing attorneys has the disposition hearing, why they didn’t put the child with relatives. Do you ever see that?
“You know, once they get into foster care, that’s the road to adoption.”
Stephanie Davis: I do see it sometimes, not as much as I think it should be done because as again, you know, once they get into foster care, that’s the road to adoption. And not that relative won’t adopt, but I think it’s different if they’re adopted by a non-relative as opposed to a relative. So I think it’s something — it’s really something that attorneys should be focusing on as part of the disposition, contested disposition especially if the client has not participated in services and doesn’t have an argument or a strong an argument for the child remaining in their home at the disposition hearing.
It is part of what has to be considered by the court at the disposition hearing base on the statutes.
Vincent Davis: Okay. Stephanie, I’m going to take a break right now from asking you qualms. Please stay on the line. I’m going to take a call, I’m getting a lot of calls here and from a caller it’s area code 323. Good morning, you’re on the radio with Attorney Vincent Davis and Attorney Stephanie Davis. How can I help you this morning?
Caller Daniel from Los Angeles
Vincent Davis: Hello, good morning.
Daniel: Good morning.
Vincent Davis: What’s your first name?
Vincent Davis: Daniel, do you have a question for us this morning?
Daniel: Yes, I do. I want to know if you use someone as a guardianship, I want to say about a year or two ago and you want to gain them back, how can you do that now that she has a CPS case out on her.
Vincent Davis: Okay, Stephanie, can you answer that for her?
Stephanie Davis: Sure. I have to ask a couple of questions though. Did the person get guardianship through the dependency court or through the probate court?
Daniel: Through family court.
Stephanie Davis: Okay, through the dependency court.
Stephanie Davis: Okay. And I’m assuming that you were also — when the CPS case — the CPS case that you’re talking about involves the children that are the subject of the legal guardianship and so I also assume that you got notice and are participating in the hearings?
Daniel: The hearing — I had to have a court date, based on the last court date I had was December 9th, 2013, but I had my daughter that day, but I didn’t know anything about court and then they said that they had my full rights, but I filed a 388 twice and they have both been denied. (TAG: 388 petition)
Stephanie Davis: Okay. That was I was going to suggest to you. Do you know why they were denied?
Daniel: No, I do not. I finished all my classes. I did everything, but then when they — the guardian that opened case on her, they said that — on my side they said that I had to do [0:45:34 inaudible] drug rehab, but no workers informed me that I had to do that.
Stephanie Davis: Okay, that’s what they said on the 388 that was returned to you, that was one of the reasons or you’re saying you got that — go ahead.
Daniel: No. A social worker — the new social workers [0:45:52 inaudible] told me that.
Stephanie Davis: Okay. So if the case involving the legal guardian, the CPS case, is that still ongoing?
Daniel: Yes, the case is going on still.
Stephanie Davis: Okay and she does that — this guardian does or does not have your children?
Daniel: She does have my children.
Stephanie Davis: She still does, okay. Your parental rights have not been terminated, have they?
Stephanie Davis: Okay. Have you stopped attending the court hearings?
Daniel: They said there was no more court date.
Stephanie Davis: So she still has the guardianship?
Stephanie Davis: Okay. And what you can do and it sounds like you may have done that already, but if they’re saying that you have to do the 30-day drug rehab, I would suggest you do that and then get proof that you completed it and then file another 388 petition asking for the guardianship to be terminated.
Daniel: Okay. I have another question, their legacy workers informed me that I should get a lawyer, but I don’t know where to get a lawyer and like this is news to me. Like this is the first time my kids are kicked in front of me?
Stephanie Davis: Well if you appear in court, you could get a court appointed attorney. That’s why I was asking you were there any more court dates?
Daniel: Well I don’t have any court dates for my case, but she has some court dates.
Stephanie Davis: No, I didn’t mean for your case. I meant for the guardian’s case.
Daniel: They won’t allow me with her court dates, like they don’t let me go to the court dates that she has.
Stephanie Davis: Well if your parental rights have not been terminated, you’re still the parent and you’re entitled to be present at those hearings. As long as your parental rights have not been terminated. So you should have been getting notice or you should have been noticed about those hearings and you have the right to attend.
Daniel: I have that instinct.
Stephanie Davis: Okay. Well I would suggest that you could talk to the — you should probably talk to a lawyer, but you also should talk to that emergency worker and tell her that you’re entitled to know this about the hearings regarding the legal guardian because you’re still the parent.
Daniel: Okay, thank you.
Stephanie Davis: You’re welcome.
Vincent Davis: Let me jump another question. Let me just in here for a second, ma’am. I want you — do you have a pen and a piece of paper?
Stephanie Davis: I’ll get, hold on a second. Okay, I have a pen and paper.
Vincent Davis: I may give you a telephone number and I want you to call — actually you can call today or you can call on Monday and what’s your first name?
Vincent Davis: Okay, Daniel. I want you to call me and if I’m not at the office, I want you to leave a message that we spoke, that your name is Daniel and we spoke on the radio on Saturday. And I think I might be able to assist you, at least would give you some more advice. Your situation is a little bit more complex than to handle, you know, in a 60-minute radio show.
Vincent Davis: So are you ready to pick up the number? Are you ready to jot it down?
Vincent Davis: It’s 888-
Vincent Davis: Uh-huh.
Daniel: You said 888-
Vincent Davis: 888-6582, so that’s 888-888-6582.
Vincent Davis: And call me on Monday, please.
Daniel: Thank you.
Vincent Davis: Thank you. All right, Stephanie, just to jump back into the topic that we were speaking about before that call, what happens and what should a parent do if their family reunification services are terminated?
Stephanie Davis: A parent — well if they’re at the hearing, they will be given or they should be given notice by the court that they have the right to file a note, what’s called a notice of intent to file a writ. They will be served personally in court with that notice. The clerk walks over. Literally the clerk walks over and give them the form for the notice of intent with the instructions about how to file it.
If they are not in court on this day that their reunification services are terminated, the clerk must mail a copy of the notice to the parent’s last known address. So once the parent receives that notice, they have seven days, and it’s not seven court days, it’s seven calendar days, meaning you just count immediately after and count Saturdays and Sundays, they have seven days in which to file the notice of intent.
And what the notice of intent does is it causes — it’s filed in the clerk’s office, in the same court where the hearing was held but it’s transmitted to the court of appeal because you are asking the court of appeal to review all the orders that were made by the trial court at the six-month review hearing including the orders terminating your reunification servicers and whether that was done properly and legally.
Vincent Davis: Okay. Is that the parent’s responsibility to do or is it the parent’s attorney responsibility to do?
Stephanie Davis: Well it is the parent’s attorney’s responsibility. But the parent has to tell the attorney I want you to file the notice of intent because an attorney cannot sign a notice of intent without the parent’s specific instructions to do so. Now, if the — the other thing that a parent should know if the attorney for some reason refuse to do or doesn’t want to do it, you could file it on your own in the court, it just has to be filed within the seven days, but you then will likely end up doing the writ yourself.
Vincent Davis: What happens after you file the notice of intent?
Stephanie Davis: As long as it is filed on time, the clerk is required to prepare a transcript and the transcript consist of every document that was filed with the court including the social worker’s report and minute orders and then the other documents that were filed to the date from the beginning of the case to the date of the review hearing. And then they also must prepare the reporter’s transcript which is the words that are spoken in court that are taken down by the court reporter at the review hearing where the reunification services are terminated. So that’s prepared — go ahead.
Vincent Davis: Okay. I was going to say thank you very much for being on this morning with me. I’m running out of time on the show. Hopefully we can have you back at a future date to go over this topic and some more topics.
Stephanie Davis: Okay. You’re quite welcome. Talk to you later.
Vincent Davis: Okay. I’m running out of time, so I want to go over a few things before we sign off. This radio show is on every Saturday morning at 8 AM, 8 to 9 AM live taking calls and giving out advice or recommendations to help people keep their families together.
Also we showed or played a recorded shows in the past that’s played throughout the week and at different times on Talk Radio Experts and Blog Talk Radio. Initially I believe that we have, if you go to our site, you can listen to shows on demand. So if you go on on your laptop or your tablet or in your phone, you can listen to this show on demand. I think we have about five or six shows in there and they all cover different topics.
There are three things that I hope you get from today’s show. I want you to make sure that if you have a juvenile dependency case, that you get expert legal representation. There is a difference amongst lawyers, just like any profession. There are some great ones, there are some terrible ones and a lot in the middle. You want to have a dependency trial work. You want a lawyer who will meet with you, talk with you and strategize with you. After all, this is your family we’re talking about.
And you want a lawyer that cares. You will know after meeting and talking with him or her whether they care about you and your case.
The second thing I want you to know is that make sure that you are knowledgeable about the law, about the California Welfare and Institution State. You can get that knowledge from your attorney, you can even Google it and/or you can download my eBook from my website and that will give you a starting place.
The next thing I want you to know is you have to vote. Usually court judges are appointed or elected but have to face re-election every few years. You have the ultimate power at the ballot box. Contact your state legislatures. You can change the laws to benefit families. For example, you should have the right to have a jury trial to be judged by your peers, but that’s not the law firm in California. In the future we will be local groups at the grassroots levels to have an impact on local elections so there will be more to come on that in the future.
Remember, we offer three resources you can have for free. This radio show which is every Saturday at 8 AM, my free eBook, The Secret to Fight CPS and Win and we also have my monthly seminar. You can get all of that and find all of those things at www.fightchildprotectiveservices.com.
Finally we also offer professional legal services. We can give you a free initial legal consultation. We can be give you full representation on court and we can also give you a case analysis and computation of your case. You email or fax me your court documents, I review and analyze and advice you on what to do and what to discuss with your attorney. In some cases, this could include prepared motions and other paperwork that you need to share with your attorney. So keep that in mind.
Goodbye for now and see you on the radio next Saturday at 8 AM Pacific Standard Time.
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