Vincent Davis: Good morning. This is Attorney Vincent Davis, and you’re on with our talk radio show, Get Your Kids Back Now! This show is dedicated to keeping families together and to fighting the tyranny of CPS and DCFS social workers. A secondary purpose of the show is to educate parents and relatives, or at least to show them where to get the necessary information for their fight. The final purpose of the show is to remind people that change can be effectuated at the ballot box, at the state and federal levels. Let us unite, vote, and elect those who will make the necessary changes.
Good morning. We’re broadcasting live this morning. It’s Saturday, and May 14th, 2016. I’m going to go right to some calls because we have a lot of calls waiting in the queue, before I get to our topic today. And our two topics today are relative placement of children who have been taken by social workers, and also to discuss more from our last show about what a trial is and how to succeed in a trial if you’re in the juvenile dependency court system. So the first call I’m going to take is from area code 562, ending in 48.
Daniel: Good morning.
Vincent Davis: Good morning. You’re on with — Good morning.
Daniel: This is Daniel. How are you doing this morning?
Vincent Davis: I’m doing find, Daniel. How are you this morning?
Daniel: I’m doing very well, and I want to say thank you again. My daughter has been home with me for pretty close to a year now. Thanks to your service and as far as the child being placed with friendly family members. My daughter was [0:01:53 inaudible] home for 13 months. And it was on the 13th month that I had looked up on your website about Child Welfare Act where they’re supposed to — Section 309 where they’re supposed to place my child with friendly family members.
At the beginning of my case, my mother and my stepfather [0:02:17 inaudible] and my sister and her husband [0:02:20 inaudible], so I could go directly to them. And the social worker just encouraged me to leave her with the caregiver the whole time. And when I found this information on your website, I downloaded the paperwork, I walked it over DCFS office, gave it to the social worker, and it was within two weeks that they moved my child from the foster care to my mother’s house.
So, I want to say thanks again for that information because [0:02:53 inaudible]. I don’t know the rules and regulations and I was trying to cooperate with everybody and just, you know, get my daughter back. It’s about my daughter, really not about me, and so I want to thank you so much. Your — you have a world of information on the website, and the radio show did help, and I try to encourage and tell people. I don’t know if they checked it out, but that right there is just really very, very helpful and I want to thank you.
Vincent Davis: Well, Daniel, thank you for calling and I appreciate your compliments. You know, I wanted to ask you, Daniel, you and I haven’t talked about this, I don’t think, or maybe we did at the very beginning, which is quite a while ago, but, you know, you and/or your daughter may have a lawsuit against the social worker and against the department. And because of that, I want you to call me next week so we can discuss that and see if you are interested in pursuing that.
Daniel: I’m definitely interested in pursuing that and I will definitely give you a call. And I — you know, I can’t thank you enough —- It’s a nightmare when you first [0:04:06 inaudible] and it’s very frustrating. And I thank you for all your many years that you have helped people out, and so it’s —-. And they’ll probably call next week. Thank you so much.
Vincent Davis: Thank you, Daniel, for calling. Bye-bye.
Vincent Davis: All right. Well, now we’re going to take a call from area code 714, ending in 36.
Good morning. You’re on with Attorney Vincent Davis.
Female: Good morning.
Vincent Davis: Hello?
Female: Hello? Hello, am I on the air?
Vincent Davis: Hi. You’re on with — Yes, you are.
Female: Oh, wow. I’ve been listening for a long time it’s — and I didn’t think it is a really live show. —-
Vincent Davis: Oh, it’s live. Yeah.
Female: Well, hello, Mr. Davis.
Vincent Davis: Good morning. How are you?
Female: My children are in relative care, so that’s good.
Vincent Davis: Uh-hmm.
Female: But I’m not happy with them being there.
Vincent Davis: Uh-hmm.
Female: My son is caring for my younger children. And he has a — he’s — well, he’s been to mental health for a 72-hour hold. He has a gun in his home. He’s on medication for his mental problem. And I don’t want my kids there. But his wife is a probation officer. So I’m thinking that’s why it’s okay.
Vincent Davis: Well, I take that you don’t —
Female: I —
Vincent Davis: I take that you don’t get along with your son and his wife?
Vincent Davis: And what kept —
Female: And now my kids are — now my kids don’t want to return. They’re 15 and 17 and they’re saying they don’t want to return back to me. And I know it’s because of the things that my son is telling them.
Vincent Davis: You think your son is saying — telling them negative things about you?
Vincent Davis: I see.
Female: For the money from —
Vincent Davis: What —
Female: that they’re getting from foster care.
Vincent Davis: Ah, you bring up a —
Female: So they got my kids and all of a sudden they get a — they got a brand new car and they got a new house.
Vincent Davis: Right. Now, you bring up a very interesting point which I really haven’t talked about on the radio show before, and that’s when your children are placed out of your care, the people, be they foster parents or be they relatives are given — it can be large sums of money, monthly, to take care of your children. And that may interfere with the children reuniting with you. But let me ask you a couple of questions first. What county is your case in?
Vincent Davis: Okay. One of my least favourite counties to do juvenile dependency cases in. Do you live in Ventura?
Vincent Davis: And does your son who has your children live in Ventura?
Female: He just moved to Oxnard.
Vincent Davis: Okay, but that’s Ventura County, correct?
Female: Yes. Yes.
Vincent Davis: And where did he live before that?
Vincent Davis: Okay. How old is your son, the caretaker?
Vincent Davis: Uh-hmm. And his wife?
Vincent Davis: Okay. You haven’t mentioned your name and I don’t want you to, but can you give me a general idea about why the children were taken from you initially?
Female: Because we were living in a hotel.
Vincent Davis: Well, I hope that’s not the only reason.
Female: And my old — well, my older children did — the older children that don’t live with me, like my son, and then I have an older daughter, they were very upset that we’re living in a hotel, the the hotel. So, my daughter kept calling in on us for various reasons, and CPS would come out and nothing was ever found at — The last time it happens, my 15-year-old daughter was staying with friends, my 17-year-old son was staying with his brother, the mental case. And I told my daughter that I was going to pick her up. Because the people where she was staying, they were complaining, saying two teenage girls in a home with a little much. So I felt that like she’s telling my daughter is [0:09:14 inaudible], so I told her I was going to go pick her up on a Friday.
My daughter started crying and said, “You don’t care about my happiness,” I said, “Yes, I do, but I have to pick you up because she’s complaining.” My daughter gets off the phone. I guess she called my older daughter, the one who’s been reporting me. Next thing you know, my 15-year-old calls CPS, she tells them I’m using drugs and I’m having a mental breakdown, and she wants to commit suicide. That’s all it took. Kids were removed.
They were — they were put —
Vincent Davis: And on —
Vincent Davis: They were what?
Female: I also had custody of my grandkids. So my grandkids were placed in the foster care, my daughter was sent to my son’s house. And then it took two weeks before my grandkids went to relatives. And then my daughter who — mother to the two little ones, they were giving her reunification services, instead of me, and I was the legal guardian. They were giving her reunification services, then I had to keep on calling them, bugging them to get a visitation. And my daughter hadn’t even — hadn’t any contact with their kids for almost three years.
Vincent Davis: How long have your — have these children been placed in your adult son’s home?
Female: Since November.
Vincent Davis: 2015?
Vincent Davis: Okay. When was your last court hearing and when is your next court hearing?
Female: My court hearing is in July. And my last court hearing was in December.
Vincent Davis: Okay. Is July the 1st six-month review date, what they call a 21(e) hearing?
Female: Yes. Yes.
Vincent Davis: 366.21E hearing?
Vincent Davis: Okay.
Vincent Davis: Now, at your last court date in December, the judge must have found some allegations against you to be true. Did you have a trial? Did you plead no contest?
Female: I had a hearing and a trial combined; it was combined. I was not allowed to subpoena witnesses or call anybody. I was alone in there. My attorney said I could not subpoena witnesses. She said that only happen in a criminal trial.
Vincent Davis: Wait a minute. Wait a minute. Wait a minute. If you’re telling me the truth, this is a — this is a very, very serious allegation because that is incorrect. It’s hard for me to believe that a licensed attorney would tell you something like that.
Female: Well, that’s what she told me. I — because I wanted to subpoena the social worker, the original social worker, who, after removing my kids, was gone from the department within — seven days she was gone. So I wanted to subpoena her. And the social — the — my attorney told me I could not do that, that only happen in criminal trials.
Vincent Davis: Okay, well, I’m here to tell you that if the attorney told you that, she was lying to you. Or the attorney doesn’t know what they were doing. So — you know, listen. Court-appointed attorneys, you know, get a bad rap sometimes. Right? Sometimes it’s not deserved, sometimes it is, but, you know, it’s like everything else. There are really good ones, there are really bad ones and there are a lot in between.
But I can tell you, if the attorney told you that, that’s not true, and you should do something about this. You should file or consider filing a motion to have the orders and findings made against you set aside because you were not able to have a trial and subpoena witnesses as you are entitled to. You’re constitutionally entitled to put on a trial and put on witnesses.
So, for all of our listeners out there, if you’re ever told that by an attorney, it’s not true. Now, an attorney might have told you, or might tell a listener, it’s not a good idea to put on witnesses during this particular trial.
Female: She did say that about my children. She did say that about my children. She said she didn’t think that the judge would want to see the children up on — up on the stand, but I told her I didn’t care, I wanted to do it anyway. Because I want them to tell the truth.
Vincent Davis: Did you put the children —
Female: No, she wouldn’t let me.
Vincent Davis: Did you put the children?
Female: She wouldn’t let me.
Vincent Davis: Oh, there’s — What — you know, if what you’re telling me is true, that’s something that you should consider.
Female: My kids weren’t even there at that hearing. They weren’t even allowed to be there at the hearing.
Vincent Davis: Uh-hmm. Well, it’s something that you should consider, talking to another attorney and making a motion to set aside those judgments and orders because you were not given the opportunity to have a full and fair trial, as the constitution requires. Now, setting that aside for a moment, you’re moving towards your first six-month hearing. Have you participated in the reunification plan that that judge has ordered? For example —
Vincent Davis: he probably — Okay. He — so tell me what the judge ordered you to do.
Female: Parenting classes and counseling and to find a home. A stable residence.
Vincent Davis: Was there anything in there about drug counseling or drug testing?
Vincent Davis: Okay. So those allegations and —
Female: And they also — they also said — right. They also said allegations against me were that there was domestic violence in the home. But I was not ordered to do domestic violence counseling either.
Vincent Davis: Okay. And have you done all of these that you’re supposed to do?
Female: Yes. I’m currently doing the counseling. I’ve done everything else. I have finished all the parenting classes and — everything else.
Vincent Davis: Are you still represented by the same attorney?
Female: No. No. I fired her, and I filed an appeal. So I have an appellate attorney who I met with once. And she’s supposed to file some papers, but I don’t know about my — the attorney that I filed, I didn’t have a Marsden hearing. So I don’t know if she actually had been replaced, or if she’s still my attorney.
Vincent Davis: You should probably email her and find out if she’s still representing you. You want to make sure, you know, so that you —
Vincent Davis: can start working with your attorney as you approach your July hearing. The appellate attorney — I assume this was an appointed appellate attorney?
Vincent Davis: The appellate attorney is not going to be representing you, unless you’ve made other arrangements, not going to be representing you in the trial court there in Ventura. He or she is only going to be representing you on the appeal of your case.
Vincent Davis: And you might want to tell — you might want to tell the attorney that, you know, what your attorney — what your trial attorney told you about, you couldn’t present witnesses because it wasn’t it a criminal case.
Vincent Davis: Your attorney on appeal can make an argument that they get everything at reverse. It’s called ineffective assistance of counsel, IAC. It’s basically a violation of the constitution for you to have an attorney that’s ineffective.
Vincent Davis: So that’s what I would consider you doing as you approach your next hearing.
Female: I did discuss that with her and she said it would be slim to none of me winning an appeal.
Vincent Davis: Really?
Vincent Davis: I’m very, very surprised.
Female: Even though there is a conflict of interest with the — my children’s attorney, because he tried to give me advice. He sent me a letter telling me to dump my husband.
Vincent Davis: What?
Female: Yeah, he sent me a letter. Months ago, before this hearing — before this case came into effect because my older daughter, the one who’s been reporting me, had tried to remove my daughter, my 15-year-old, before. She tried to take my 15-year-old from me before. And this same attorney was her attorney then; was my daughter’s attorney. So now he’s still her attorney.
Vincent Davis: Uh-hmm.
Female: And at the time when he was her attorney, he sent me the letter, telling me to dump my husband, blah, blah, blah. And —
Vincent Davis: Did your — did your attorney give him permission to contact you?
Female: No. He just did — he just did on his own. He said he was doing a good deed or something, you know.
Vincent Davis: You know, that’s a serious violation. I can’t believe he did that without getting your attorney’s permission.
Female: Oh, yeah, he did. And then he sent a letter. He sent another letter to the CPS worker, saying that he had represented my daughter before, and my husband is blah, blah, blah, blah and — Yeah. So he’s making it an issue about my husband, instead of an issue about myself and them claiming that I’m ineffective as a parent, then why are they making that whole issue about my husband?
Vincent Davis: Uh-hmm.
Female: Like they have nothing to say about me.
Vincent Davis: Before we move on to the next caller, I wanted to tell you something.
Vincent Davis: If the judge ordered you to get housing, the social worker must give you services and financial assistance in get — trying to get that housing. Has the social worker done that?
Vincent Davis: Okay. So I would email the — first of all, I would — find out who your attorney is, and consult with your attorney, and ask your attorney if you should email the social worker and email the social worker asking that you should get family reunification services, including the assistance of housing.
I was once involved in a case in Los Angeles County, this in many, many years ago, and one of the reasons why they weren’t going to give the children back to my client, who was a mother, single mother, was because she didn’t have housing. And so I made a motion, and under the 16,500 et cetera code sections of the Welfare and Institutions Code in here in California, and using some authorities from some other states, I compelled the social worker to pay for my client’s apartment. Not only did they pay for the apartment, but they bought her appliances and, you know, they helped her furnish the apartment and they paid for apartment for several, several months before the case was closed.
Then of course they were anxious to close the case because they don’t want to keep paying for the apartment for my client. In that particular case, they were paying about $5,000 a month for her — six of her children to be placed in, I think, four or five different foster homes. And it didn’t make any sense why if that was the only reason they wouldn’t give her the children back, why couldn’t they give her, you know, $2,000 a month to get an apartment instead of paying $5,000 a month in foster care?
Vincent Davis: So that’s something you should also — you should also talk to your attorney about. Ma’am, I’m going to have to move on, but I want to thank you for calling in this morning.
Female: Thank you. You have a good day.
Vincent Davis: You, too. Bye-bye.
Okay, I’m going to move on to my next caller. Area code 626, ending in 12.
Female: Good morning.
Vincent Davis: Good morning. You’re on with — Good morning. How are you?
Female: I’m fine, thank you. Mr. Davis, I have a question to ask. I have my child, and I have her attorney who’s representing that — for this case, mailed me a letter stating that she is her attorney and that if anything comes up regarding, you know, legal things about — for the child, I were to contact her and that she would be the contact.
I asked for — I asked for some questions about the school and I asked about some other things that happened, some issues, very important issues. And she responded to me by saying, “Don’t call me again. You have an attorney. We have nothing to say to each other. Do not call me again.” So I’m thinking, if this is my child’s attorney, who do I supposed to talk to about the things that are coming up concerning my child if she is her attorney?
Vincent Davis: You’re supposed to be — well, first of all, do you have an attorney?
Female: Yes, Mr. Davis. Yes.
Vincent Davis: And —
Female: Or my attorneys.
Vincent Davis: What I would do is I would email your attorney, tell him or her what has happened, so that they can contact the minor’s attorney directly. You know, it sounds like, you know, the minor’s attorney forgot that she informed you to contact her, you know, if anything came up. So what I would do is I would email the information to your attorney, and your attorney will definitely forward that information to the minor’s attorney, and hopefully those issues can be resolved if there — you know, are any problems.
Female: The issues concerning is school. And for some reason —
Vincent Davis: Can’t hear you.
Female: The issues concerning here is school. And for some reason they’re telling me that I have to wait. I have — it’s been four months that I have been waiting for results. But I have the letter, and I have also — she sent someone from her office to my home, acknowledging that she is Isabel’s lawyer. So the best thing for me to do is send her back a copy of the letter, is that what you’re saying?
Vincent Davis: No. For the information to your attorney, and he or she —
Female: Oh, I see.
Vincent Davis: will forward it on to — on to the minor’s attorney.
Female: All right. All right. Perfect. Thank you so much and congratulations on your show. It is something that’s very important and much, much needed.
Vincent Davis: Well, thank you very much for calling in.
Female: Thank you. Bye-bye.
Vincent Davis: Bye-bye.
Okay, we’ve almost reached the halfway point in our show. I want to try to get to this placement with relatives. Section 309 of the California Welfare and Institutions Code says in subsection (a), “Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child’s being taken away into custody and attempt to maintaining the child with child’s family through the provision of services. The social shall immediately release the child to the custody of the child’s parent, guardian, or responsible relative, regardless of the parent’s, guardian’s, or relative’s immigration status, unless one or more of the following conditions exist.” And then the statute goes on to list five conditions, which we’re going to talk about in a minute.
The first part of this is I want to be — want to realize what Section 309 says. And, you know, the first caller this morning was a guy named Daniel and he’s — he was an actual client who called me many months ago and he told me the story that this child had been detained and placed in a foster care for almost a year. And there were relatives on both sides of the family, the mother’s and the father’s, who could take the child, but for some reason the social worker wanted to keep the child in foster care.
Now, it is my opinion, and this is just my opinion, that social workers sometimes recommend the child to be placed in foster homes for three basic reasons. Number one, money. I think that social workers in the counties make money when the children are placed in a foster home. And make money from the federal government and the state government.
Number two. I have seen in my experience of almost — being a lawyer almost 30 years now that in some cases it seems that social workers and foster parents sometimes have a relationship where it’s almost as if social workers want to award or do something good for foster parents and doing something good for foster parents who’s in the money of — who’s in the business of taking care of foster children and to give them foster children. That way foster parents get the child which they don’t — which they want, perhaps to adopt eventually, and social workers somehow award these foster parents as if “Thanks for being there, thanks for being a foster parent.”
And the third reason I think that this happens — now, don’t forget this is just my opinion — the third reason I think this happens is because sometimes I get the feeling that the social worker doesn’t want to take the time, energy, and money it takes to investigate a particular relative. Especially if that relative lives out of the county or out of the state or out — even out of the country. So — I mean, there are no geographic bounds to where this relative can live.
So, you get these situations where kids are going into foster homes, and there’s just relatives all over the place and nobody talks to the relatives. And by the way, sometimes that’s the parent’s fault. Because imagine if you’re a young parent, your child is taken away from you for allegedly using drugs, the last people you want to tell are your relatives. So when the social worker comes to you and says — comes to that parent and says, “Hey, do you have any relatives?” you know, all of a sudden the parent, you know, doesn’t know of anybody that might want to take care of the kid or says, “No, I don’t have any relatives,” because that parent thinks that they’re going to, you know, get the child back soon or that they’re going to get the child back eventually because they’re going to rehabilitate themselves.
But drug addiction is a terrible disease. You know, other times parents don’t rehabilitate themselves, and then all of a sudden relatives find out that the child’s no longer with the parent and, you know, six months or 12 months down the road and nobody wants to move the child to the relative anymore because the child has a bond, psychologically or emotionally with the parent or with the foster parent. So it’s important that the entire family get involved at the very beginning of the case. And Section 309(a) says that the social worker shall immediately release the child to a responsible relative.
Now, I rarely see that happen. I do see it happen sometimes. But it’s not the — it’s not the norm of social workers releasing child — children immediately to relatives. So that’s something that the parents and the relatives should insist on, and if they’re not getting any release of the child from the social worker, the parents and the relatives must go to court and bring this up. Bring this up immediately to the juvenile judge. Most judges, in my opinion, are in favour of children being released to relatives. But when they get reports and there’s no mention of relatives, to go on a hunt for relatives, it’s the social workers, and it’s the parents’ attorney and the relatives’ attorney, if they have one, to insist that this immediate release take place. Because in my mind, when the statute says ‘immediate release of the child’, that’s what it means.
Now, subsection (a) also has some provisions. And the first one is a1. By the way, you can find this on Google. A1 says, “The child has no parent, guardian, or responsible relative; or the child’s parent, guardian, or responsible relative is not willing to provide the care for the child.” So that’s the first instance where the child doesn’t have to be released to the parent or the relative.
Now, in situations — the first situation that comes to my mind is sometimes we have a case where there is a — there are two parents. They don’t live together, they’re not married, they were never married, or they’re married and they’ve separated. If the child is taken away from the mother, for example for drug use, this statute is saying that the child must be placed with the father. Unless the social worker determines that the child is not a responsible parent.
Now, generally speaking, social workers don’t have any evidence about the father. And sometimes they just refuse to investigate the father or didn’t even consider investigating the father, first of all. And then secondly, they choose not to investigate the father. They just ignore him since he or she “wasn’t part –” you know, “part of the picture.” But that’s not what the statute says. Statute says [0:33:05 inaudible] release to the responsible parent.
The second condition that 309(a) talks about is if the “continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative. Or the home of a responsible relative.”
Now, in juvenile court, in my opinion, this particular provision is used and somehow massaged in such a way to keep children away from parents and away from relatives. Because in our example, if our mother was having a drug problem, there could be reasonable means by which the child could be returned to the mother, because we don’t want to really place children in foster homes. And in situation that I’m thinking of is that, you know, mother has a drug problem, and she is willing to go into an in-patient drug program which has or which allows the children to be there with the mother. A lot of people don’t know that these facilities exist, social workers know that these facilities exist, and a lot of times, not always, but a lot of times they’re not even offered — the mother is not even offered this possibility.
The third condition of 309(a) is “there is substantial evidence that a parent, guardian, or custodian of the child just likely to flee the jurisdiction of the court.” The substantial evidence part is the part that gets me because in the few times I’ve seen this argued, in my opinion, they didn’t have substantial evidence. And I don’t think that it’s a reason not to give a child back to a parent, especially if the parent promises to stay there and — you know, here in California while dependency of the case.
309(a)(4) says, “The child has left the placement in which he or she was placed by the juvenile court.” That is [0:35:24 inaudible] situations where usually you have teenagers, you know, maybe 14, 15 who’s been placed with the maternal aunts, and the maternal aunts or the foster care placement and the 14 or 15-year-old is having problem with the adult, perhaps the supervision, perhaps the house rules, and leaves. So in that particular case, the law is saying, in my opinion, that you don’t have to return the child to that place.
309(a)(5) says, “The parent or other person having lawful custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code and did not reclaim the child within the 14-day period specified in subdivision (e) of that — of that section.”
In my years of experience, I don’t think I have ever seen that particular subsection used. To be honest with you, I’m not sure what it means. But it’s there and if you want to know what Health and Safety Code, California Health and Safety Code 1255.7 means or says, just Google it and find out. The bottom line is I’m telling you, in most of the cases that I deal with and I’m familiar with, children should be released to parents no matter what the cost, unless there are no reasonable means to ensure the child’s safety.
Now, a lot of times there are services that you can give a parent to keep a child, but a county doesn’t to offer those services, for example, in-home services, because it’s very expensive for a county to do that. And they choose not to do that. And I don’t think that that’s the law. And then of the cases for 309 which I come across is the social worker not wanting to give the child to a relative.
We have a case in another county in Northern California where it’s their rule that they don’t place children with relatives until after the disposition hearing, which could be several weeks to a few months down the line. In my opinion, that policy is illegal. Now, I’m going to be talking to my office and a couple of the attorneys in trying to perhaps bring some type of federal lawsuit to file on behalf of relatives in that county because that’s not what the law says in Section 309.
309(b) says, “In any case in which there is reasonable cause for believing that a child who is under the care of a physician and surgeon or a hospital, clinic, or other medical facility and cannot be immediately moved and is a person described under Section 300, the child shall be deemed to have been taken into temporary custody and deliver the social worker for purposes of this chapter while the child is at the office of the physician and surgeon or the medical facility.”
Typically, that situation arises when a child is born and it has a lot of medical problems, and it can’t be moved from the hospital because it would be medically imprudent to move the child. The last case I remember about this is child was born with several physical problems and medical problems because of allegedly being born with drugs in his system, and the child could not be moved. So in this particular case, the parent or the child could not get the child at the detention hearing because the child couldn’t be placed outside the medical facility or it would be life-threatening. But, once that child is ready to be released, it’s incumbent upon the parent, the parent’s attorney and the relatives and the relatives’ attorney, if they have one, to go to court, seek placement of that child under Section 309(a).
309(c) says, “If the child is not released to his parent or guardian, the child shall be deemed detained for purposes of this chapter.” Now, 309(c) has nothing to do with relatives. It just says that if the relative — if the child is detained and placed in a foster home, or in a relative home or in a group home, that the child is detained from the parents’ custody and their rights — the parents’ rights are somewhat limited as to custody, visitation and making decisions about the child. And those — and I want to say those are temporary suspension of those parental rights.
309(d) says that “if the –” first of all there’s a (d)(1) –“if an able and willing relative, as defined by Section 319, or an able and willing nonrelative extended family member, as defined in section 362.7, is available and request temporary placement of the child pending the detention hearing, or after the detention hearing and pending the dispositional hearing conducted pursuant to Section 358, the county welfare department shall initiate an assessment of the relative’s home –” excuse me — “of the relative’s or nonrelative extended family member’s suitability, which shall include an in-home inspection to assess the safety of the home and ability of the relative or non-relative extended family member to care for the child’s needs, and a consideration of the results of a criminal records check conducted pursuant to subdivision (a) of Section 16504.5 and a check for allegations of prior child abuse or neglect concerning the relative or nonextended family member and other adults in the home. A relative’s identification card from a foreign consulate or a foreign passport shall be considered for — shall be considered a valid form of identification for conducting a criminal records check and fingerprint clearance check under this subdivision. Upon completion of this assessment, the child may be placed in the assessed home. For purposes of this paragraph, and except for the criminal records check conducted pursuant to subdivision (a) of Section 16504.5, the standards used to determine suitability shall be the same standards as set forth in the regulations for the licensing of foster homes.”
309(d) is a mouthful. And it is usually where relatives get caught up with the social workers in getting these children. A lot of times, the social workers in the counties have the excuse. “We don’t have the time nor the manpower — the time nor the manpower to conduct these investigations within an expeditious fashion.” So what happens is, is that you get a relative who comes forward at the very beginning of the case, and tells the social worker, “Hey, I want the child placed with me.” Either the social worker drops the ball, or the social worker can’t get the assessment done. Because in most counties, you know, they have separate assessment units. And as you can imagine, there are a lot of relatives who want children placed with them, and they’re apparently overworked and underpaid.
So, if there is an unusual delay in trying to get a child placed with you, you should immediately talk — the parents should immediately talk to their attorney, the relatives may want to talk to the parents’ attorney or may want to seek to get their own attorney themselves in order to try to speed up this process.
D — excuse me — Section 309(d) also has a second part, and a third part, and a fourth part. So the second part of Section (d) says, “Immediately following the placement of the child in the home of a relative or nonrelative extended family member, the county welfare department shall evaluate and approve or deny the home for purposes of AFDC-FC eligibility pursuant to Section 11402.”
Now, what that says is that these relatives should be receiving foster care payments and foster care money. A lot of times, and this happens a lot, relatives aren’t assessed, aren’t even given consideration to be assessed. And in my opinion, it’s done for two reasons. Number one, the social worker just doesn’t have the time nor the inclination to do this. And number two, it saves the — it saves the county money. So they don’t have to pay these relatives to take these children by the fact of 309(d)(2).
(d)(2) goes on to say, “The standards used to evaluating grant or deny approval of the home of the relative and of the home of the nonrelative extended family member, as described in Section 362.7, shall be the same standards set forth in the — as described –” excuse me — “shall be the same standards set forth in regulations for the licensing of foster homes which prescribe standards for safety and sanitation for the physical plant and standards for basic personal care, supervision, and services provided by the caretaker.” In my opinion, what that’s just saying is that the caretakers are going to have rise up to the standards of what a foster home would be given.
You know — so — sometimes you come across a situation where the relative who wants the child doesn’t have the physical what they call plant or the home to take the child because they’re living in a home or they may be a hoarder and they may not be — not the sanitary condition. So what this is saying, the California legislature doesn’t want to just put the child in any relative home or any nonextended family member. And I — and I want to stress to people that are listening, you can be a nonextended — nonrelative extended family member, they call them NREFMs, and still get a child place with you. That’s what Section 309 says. You don’t have to be related by blood, you don’t have to be related by marriage. You can be a nonrelative extended family member. For example, the family across the street could qualify to take care of the children, instead of putting them in foster care.
309(d)(4) says, “If the criminal records check indicates that this — that the person has been convicted of a crime for which the director of Social Services cannot grant an exemption under Section 1522 of the Health and Safety Code, the child — the child not should be placed — the child shall not be placed in the home. If criminal records checks indicate that the person has been convicted of a crime for which the director of Social Workers — of Social Services may grant an exemption under section 1522 of the Health and Safety Code, the child shall not be placed in the home, unless a criminal records exemption has been granted by the county based upon substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child.”
That’s a mouthful. It’s the second place that relatives get caught up with trying to get a child placed with them. In many circumstances, relatives may have a prior criminal history. Now, that criminal history, I’ve seen a prior criminal history for murder to drug sales to drug abuse to DUI to domestic violence. If you’re going to — if you got a relative or a NREFM and you have that type of criminal history, please note that you are probably going to have to get an exemption, and you’re going to have to cross your fingers on whether you can get that exemption or not.
Section 309(e) states — (e)(1) states, “If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, and other adult relatives of the child, as defined in paragraph (2) of subdivision (f) of Section 319, including any other adult relatives suggested by the parents.” As used in this section, “sibling” means a person related to the identified child by blood, adoption, or affinity through a common legal or biological parent.” To me, “affinity”‘ means stepsibling as well. “The the social worker shall provide to all adult relatives who are located, except that relative’s history of family or domestic violence makes notification inappropriate, within 30 days of removal of the child, written notification and shall also, whenever appropriate, provide oral notification, in the person — in person or by telephone, of all of the following.” And then it goes to list of all the things that we — that the social worker should be telling you, the relative.
Now, this is important. This is extremely important. And in my opinion, it’s rarely done, and it’s rarely brought up or the social workers rarely held accountable in the juvenile court for not complying with this particular section. Let’s read it again. (e)(1) says, “If the child is removed, the social worker shall conduct, within 30 days, an investigation, in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, and other adult relatives of the child” defined in Section 319.
Now, I’m involved in a lot of cases in many different counties here in California. And many times, the social worker has an excuse, and the excuse says, “The parent didn’t tell me about any relatives, so I didn’t look for any relatives.” And then in a lot of cases I bring up the point, so I read Section 309. It says, “If the child is removed, the social worker shall conduct an investigation.” Many social workers have testified in cases I’ve been along — involved with that their investigation is limited to asking the mother, sometimes asking the child of any adult relatives. In my opinion, that’s not what section 309(e) says or means.
My opinion is that they must go out and check. They must do due diligence. In the county — the city and county of San Francisco, they got sued, I think, several years ago for not doing this. And as a result, they actually farm out the investigation for relatives. And the company that does this investigation prepares a report that the social worker will use in court as to relatives, and also will contact these relatives about possibly taking care of the child. And in San Francisco, here is where it will catch you because in a case I was involved with there I asked the relative, “Were you contacted by a social worker?” And the relative told me, “No, I wasn’t contacted by a social worker but I was contacted by a company who is doing work for the social worker.” I said, “Oh, they did contact you and they told you about the case?” “Well, yes, they did. But they told me that I wouldn’t want to take care of the child because I probably would have to pay my own money and I probably — you know, the child had a lot of medical conditions.” Neither of which were true. So that relative when he was contacted at the beginning of the case said, “No, I’m not interested.”
So it was reported to the court that this relative had been found, it was reported to the court that this relative wasn’t interested. Both of those things are true. But what wasn’t reported to the court was why the relative couldn’t take the child. And I guess, because I wasn’t involved in the case at the beginning, nobody bothered to ask or call or follow up on that as to why.
You know, we’re running out of time and I can pick up this explanation of 309 because it’s very, very — next week, but before we get into the closing part of the show I want to try to take one more caller. Area code 808, ending in 42.
Good morning. You’re on with Vincent Davis.
Female: Good morning. I wasn’t expecting for you to take my call. I’m in Hawaii, so I don’t think that you can actually give me advice, but I would like to take the opportunity to talk since I’m on the air.
The situation over here in Hawaii is extremely, extremely bad. I just hope that somebody can start to do something to change the CPS cases because these people have way, way too much power, and they have been destroying my family and really for no reason because as if — it’s pretty apparent in my case — my kids were not even harmed in the first place, yet because they seem to be so angry about this, they’ve continued to just completely shred my family to pieces, and it seems that more that I — that I fight with them about the things that are — that they’re doing to my children, the more they shred my family to pieces and they refuse to place my kids with family members or with nonrelatives. They’ve absolutely refused, and I really don’t know what can be done over here, but after listening to your — to your telecast I’m very inspired to really check into it. I had no idea that some of the things that you were talking about today were even possible. And I just thank you from the bottom of my heart for being there for people and for actually doing something to try to change the CPS system because it is the worst nightmare that any human being on this planet can possibly go through. And the fact that they’re doing this to children is unfathomable.
Vincent Davis: Well, thank you for calling. I appreciate it. I want to give you a word of warning. So I’m giving advice to people who have cases in California. I’m a licensed California attorney. I don’t practice in Nevada, I don’t practice in Hawaii. But I have read some laws and the codes there regarding these CPS cases, and they’re very, very similar because all of these laws are — really come from the federal government, that — the Department of Health and Human Services and there are certain things the state have to do. So I wouldn’t be surprised if there were similar or identical laws in your state. But it’s important that you get a licensed attorney in your state who you can go and talk to and hopefully he or she will be able to help you.
But I welcome you to keep listening because maybe you’ll get some ideas, maybe you’ll learn a couple of things that you can go back and talk to your attorney about, to see if you can do it in your state. I’d be surprised if Hawaii doesn’t have a section like Section 309 here in California. I want to thank you for calling, and please tune in — please tune in next week to our show.
Female: Thank you.
Vincent Davis: Okay. I’m going to wrap up the show now, and I want to thank everybody for listening this week and we’re going to be on next at the same time, 8:00 AM to 9:00 AM on Saturdays, and we’ll be talking about how to fight CPS, how to get your children back.
Next week I’m going to try to finish this Section 309 and the thing about relative placement. And I’m going to also talk some more about trials because I keep interviewing or talking to people who have had a very bad experience in trials with their juvenile court case. I want to remind folks that if you have a juvenile court case, if you’re a relative or if you’re a parent, it’s important for you to get competent legal representation. You can find legal representation on the Internet, you can find it through court-appointed attorneys, if you can’t afford to hire a private attorney, but get competent legal representation.
The second thing I want to remind people is to educate yourself. Go to one of my websites, get the information. I have a book that I wrote for parents and relatives. Download it. Take a look at it. Third thing and a final thing, vote. Vote for family-friendly judges. Make sure that you exercise your power at the ballot box. Thank you and I’ll see next week.
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