Download
slide1 n.
Skip this Video
Loading SlideShow in 5 Seconds..
BASIC CONSIDERATIONS PowerPoint Presentation
Download Presentation
BASIC CONSIDERATIONS

BASIC CONSIDERATIONS

0 Views Download Presentation
Download Presentation

BASIC CONSIDERATIONS

- - - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript

  1. COURT PROCEDURESRoger B. CoffmanAdapted from Materials Prepared for the Bay Area Academy by Patrick W. Burke, Esq.

  2. BASIC CONSIDERATIONS • Juvenile Court dependency actions should be a matter of last resort • Social workers should utilize voluntary or informal child welfare services when possible consistent with the safety of the child • Social workers must understand the court process in order to use it to help families overcome problems which place the child at risk

  3. Mandates for Cultural Sensitivity • Cultural and religious child-rearing practices and beliefs which differ from general community standards shall not in themselves create a need for child welfare services unless the practices present a specific danger to the physical or emotional safety of the child. WIC § 16509. • Services provided shall be culturally and linguistically appropriate to the populations served. WIC § 18961(a)(3).

  4. Mandates for Cultural Sensitivity • It is the policy of the state that all children in foster care shall have . . . fair and equal access to all available services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status. WIC § 16001.9, subd. (a)(22)

  5. HOW DO YOU MAKE THE COURT SYSTEM WORK FOR YOU? • You first must understand how it works

  6. FORENSIC SOCIAL WORK The study of forensic social work will equip social workers to: • Understand Philosophy of Adversary Process and Fundamental Principles of Law and Procedure. • Understand the importance of the Crucial Task of Data Collection. • Effectively Present and Defend Assessments and Recommendations in the Courtroom Through Reports and Expert Testimony.

  7. LAWYERS V. SOCIAL WORKERSMARS AND VENUS? • Different familiarity with court • Different attitude toward court • Different language • Different analytical model • Different approach to work • Different value on feelings • Different masters

  8. SOCIAL WORK The Helping Process Presenting Problems Consensual Involvement Partnership Accommodation Dialogue Assessment Anecdotal Information Data Collection Case Conference LEGAL The Adversary Process Allegations of Wrongdoing Coercion Parties to a Dispute Confrontation Cross-Examination Legal Analysis Eyewitness Testimony Investigation Trial CONCEPTUAL DIFFERENCES:SOCIAL WORK THEORY vs LEGAL THEORY

  9. SHARED VALUES:County Counsel and Child Welfare Workers • Both value problem resolution • Both value relationship with client • Both value the best interest of children • Both value social justice and fairness • Both value public service • Both value professional competence and integrity

  10. THE JUVENILE COURT DEPENDENCY PROCESS

  11. DUE PROCESS(The U.S. Constitution) “No person shall be… deprived of life, liberty or property, without due process of law.” Fifth Amendment to U.S. Constitution “Nor shall any state deprive a person of life, liberty or property, without due process of law.” Fourteenth Amendment to U.S. Constitution

  12. DUE PROCESS Two Types 1.SUBSTANTIVE DUE PROCESS refers to an individual’s right to be free of government interference in matters involving life, liberty and property absent a reason for such interference.

  13. DUE PROCESS 2. PROCEDURAL DUE PROCESS: when the government proposes to interfere with or impair the individual’s constitutional right to life, liberty or property, the individual has the right to a fair procedure. Including: ● Right to Notice of Hearing ● Right to Appear in Court ● Right to Assistance of Counsel ● Right to Trial • Confront/Cross-examine Witnesses • Subpoena Witnesses • Present a Defense • Impartial Trier of Fact

  14. DEPENDENCY COURTWho are all these people???

  15. Judge Clerk Reporter Bailiff Child Child’s Attorney Mother Mother’s Attorney Father Father’s Attorney Social Worker County Counsel Court Officer/Court Assistant CASA Interpreter Participants in a Dependency Proceeding

  16. Role of the Judge

  17. Role of the Judge • The judicial function is to declare the law and define the rights of the parties under it...and to make binding orders or judgments. In re Shawna M. (1993) 19 Cal.App.4th 1686 • “The object of a lawsuit is to get at the truth and arrive at the right result. That is the sole objective of the judge…”Frankel, "The Search for the Truth: An Umpireal View," 123 U. Penn. L. Rev. 1031, 1035 (1975).

  18. Role of the Attorneys

  19. Role of the Attorneys • The social worker is represented by COUNTY COUNSEL • The child is represented by an appointed attorney • The mother and father are separately represented by court appointed attorneys unless the parents hire private counsel

  20. Attorneys have an ethical obligation to singularly advocate for the rights and interests of their particular client Ethical duties of lawyers include: Loyalty Confidentiality Zeal Competence Communication Role of the Attorneys

  21. Relatives De Facto Parent Guardian Ad Litem Foster Parent / Caretaker Tribal Representative Witnesses “Such other persons” More Participants in a Dependency Proceeding

  22. Stages of a Juvenile Court Dependency Proceeding

  23. Referral Protective Custody § 300 Petition Initial Hearing Jurisdiction Hearing Disposition Hearing 6-mo Review Hearing 12-mo Permanency H 18-mo Permanency H § 366.26 Hearing Post-Permanency H Stages of a Dependency Case

  24. Referral to Child Abuse Hotline The Hotline social worker decides: (1) no response, or (2) Immediate response (3) 10-day response Substantiated Referrals-Due Process Issues Before Protective Custody

  25. PROTECTIVE CUSTODY

  26. Under What Circumstances May a Social Worker Place a Child Into Protective Custody?

  27. PROTECTIVE CUSTODYWelf. & Inst. Code §§ 305, 306 • Social workers have limited authority to place a child into protective custody. • Law enforcement officers have broader authority to place a child into protective custody

  28. PROTECTIVE CUSTODYBefore placinga child into protective custody, a social worker must have: • Parental consent, or • A Court Order, or • Reasonable suspicion that child falls within 300(b) or 300(g) AND immediate danger/ imminentand substantial threat to the child’s life or health. = Exigent Circumstance

  29. PROTECTIVE CUSTODYBefore placinga child into protective custody, a peace officer must have: • Parental consent, or • A Court Order, or • Reasonable suspicion that child falls within 300 AND immediate danger/ imminentand substantial threat to the child’s life or health. = Exigent Circumstance

  30. DO WE NEED A WARRANT TO SEE A CHILD OR TAKE A CHILD INTO CUSTODY? POTENTIAL PROBLEM AREAS ● After going to the home to investigate abuse allegations, you leave, go to your office and consult with others before returning to take a child into custody. ● You are with a police officer who feels that he can enter over a parent’s objection to conduct a “welfare check.” Can you also? ●The teenage babysitter answers the door.

  31. AFTER PROCTECTIVE CUSTODY • Once the child has be taken into Protective Custody, the social worker has 48 judicial hours to file a petition or release child to a parent

  32. PETITIONWelf. and Inst. Code §§ 325-332A proceeding in the juvenile court to declare a child a dependent child of the court is commenced by the filing with the court, by the social worker, of a petition. . .

  33. SPECIAL PETITIONS WHICH PETITION DO I USE?300/342/387/388

  34. SECTION 300 PETITIONS • Petition used to initiate the dependency process. • Ten jurisdictional grounds; a-j.

  35. SECTION 342 PETITIONS New Allegations Under a Different Subdivision of Section 300: Section 342 applies to new facts which fall under a different subdivision of Section 300. All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section.

  36. 387 PETITIONS An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after notice hearing upon a supplemental petition. (a) Supplemental petition contents: a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the minor.

  37. 388 PETITIONS Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court.

  38. 388 PETITION If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Section 386, and, in such instances as the means of giving notice is not prescribed by such section, then by such means as the court prescribes.

  39. WHAT ARE THE 10 GROUNDS FOR JURISDICITON THAT CAN BE ALLEGED IN A PETITION?

  40. A. Physical Abuse B. Neglect C. Emotional Abuse D. Sexual Abuse E. Severe Physical Abuse to Child <5yr 10 TYPES OF ABUSE/NEGLECTWELFARE AND INSTITUTIONS CODE §300

  41. 10 TYPES OF ABUSE/NEGLECTWELFARE AND INSTITUTIONS CODE §300 • F. Causing Death of another child • G. Abandonment or Incarceration • H. No Adoption >12m • I. Cruelty • J. Sibling Abuse

  42. INITIALHEARING(aka Detention Hearing)Welf. & Inst. Code § 319 • Must be conducted day after petition filed • Court advises parents & child of rights • Legal Issues • Should child remain in protective custody? • Reasonable efforts to prevent removal? • Where should the child temporarily reside? • What visitation pending next hearing? • Other Issues: ICWA, Paternity, Addresses

  43. INITIAL HEARINGLegal Test For Detention • Is there a substantial danger to the physical health of the child, or is the child suffering severe emotional damage, and no reasonable means by which the child's physical or emotional health may be protected without removing the child from the parents' or guardians' physical custody? • Burden of proof = prima facie evidence

  44. What is prima facie evidence? • Evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim.

  45. INITIAL HEARINGPotential Outcomes • Child is released to parent(s) • Child is detained in protective custody • Matter is set for prima facie hearing (contested initial hearing) within 3 days • Matter is set for contested jurisdiction hearing within 10 days

  46. JURISDICTION HEARINGWelf. & Inst. Code § 345-356

  47. JURISDICTION HEARINGKey Considerations • Must be conducted within 15 court days of initial hearing, absent time waiver • Single legal issue = is the petition true? • Malinda S. allows court to decide issue based on social worker’s court report • Judge must conduct proceeding in “informal nonadversarial atmosphere” whenever possible – WIC § 350 • Burden of Proof- Preponderance of the evidence

  48. JURISDICTION HEARING • Preponderance of evidence means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.

  49. Hearsay in Jurisdiction Report Hearsay in report is sufficient in and of itself to sustain petition if: 1. Hearsay is admissible. 2. Source is peace officer, health care provider, credentialed teacher, licensed social worker. 3. Source is child under 12 named in petition. 4. Source is made available at hearing.

  50. DISPOSITION HEARINGWelf. & Inst. Code §§ 358 – 362.4