JUDICIAL PERSPECTIVE

It’s about the CHILD!

A little history Until the 1960s the Welfare and Institutions Code was designed to primarily deal with children who were “delinquent” and abused and neglected children were covered by the same statutes.

Until 1986 petitions were filed alleging BAD conduct on the part of parents Sweeping new legislation shifted the focus from parental “unfitness” to the actual injuries and risks to the child. Petitions describe THE CHILD.

In 1988, the Legislature added W &IC §100 recognizing Court Appointed Special Advocates and codifying their responsibilities and importance to the courts.

EXPECTATIONS by Court for Child Advocates Regular and on-going contact with the child, and with others as appropriate Brief, well structured reports with well reasoned recommendations Participation in conferences Willingness and ability to respond to questions by the court Training in, and understanding of the purposes of dependency and the applicable statutes

Purposes of the Child Welfare System Maximum protection for children who are physically, sexually or emotionally abused, neglected or exploited, or at serious risk of abuse or neglect Includes provision of services to the child and family and presumes that the best interest of the child is to remain in or be returned to the child’s home or family

THEREFORE: Families must be preserved whenever possible, without unnecessary disruption If removed, reunification efforts must be made If reunification efforts fail, or should not be attempted, there must be prompt planning for an alternative permanent home

PERMANENT???? 1.Existing perpetually; everlasting 2.Intended to exist or function for a long, indefinite period without regard to unforeseeable conditions 3.Long lasting Syn: stable, invariable, constant

Family Preservation or Restoration and Permanency 1. Kids do better at home 2.Need for family 3.Cost to the child 4.State as parent 5.$$$$$$$

COUNSEL FOR CHILDREN W&I CODE §317(c) Court MUST appoint counsel for any unrepresented child UNLESS court finds child would not benefit from the appointment of counsel. If no appointment, court must state why on the record.

Rule of Court 5.660(b) To find no benefit, court must find the child: Understands nature of the proceeding; AND Able to communicate and advocate effectively with court and counsel and others (like social workers;) AND Would not gain ANY benefit from representation.

Attorney and CASA If court finds no benefit to the child from appointment of counsel, the court must appoint a CASA to serve as Guardian ad Litem for the child. This is a CAPTA (Child Abuse Prevention and Training Act) Guardian ad Litem and if counsel is appointed, that person serves as CAPTA Guardian ad Litem.

COUNSEL FOR CHILD Represents the child’s INTERESTS SHALL investigate to learn facts, interview witnesses, examine and cross examine witnesses, introduce evidence and make recommendations to the court.

COUNSEL FOR CHILD If child is four or older, counsel SHALL interview the child to ascertain his or her wishes and well-being and SHALL advise the court of the wishes of the child.

COUNSEL FOR CHILD Counsel shall NOT advocate for the return of the child to the parents if, to the best of his or her knowledge, return conflicts with the child’s best interests.

W&IC §104- CASA duties It’s up to the court but may include an independent investigation of the case, interviewing and observing the child and others, and reviewing records and reports. MUST report results to the court. Shall follow the orders of the court and provide info specifically requested by the court.

COURTS

WHO IS THERE? The Judicial Officer (black dress—sitting up higher) A Bailiff (uniform—gun) Clerk (behind desk—next to person in black dress) Court Reporter (with small typing machine—goes click-click) Court Officer (Social Worker—small desk next to the wall)

WHO ELSE? Lawyers (Suits and briefcases; usually seated at counsel tables) Parties (parents, children etc.—no noisemakers or party hats) Social Worker(s) assigned to case Child Advocates Others---relatives, friends, supporters; witnesses

JUDICIAL OFFICERS JUDICIAL OFFICERS Judges Judges Presiding Presiding Assigned Assigned Commissioners Commissioners Judges Pro-Tem Judges Pro-Tem Referees Referees Orders removing child must be approved by a judge Findings and orders are subject to rehearing

Person in Black Dress What do we call him or her? (a)Your Eminence (a)Your Eminence (b)Judge (b)Judge (c)Your Honor (c)Your Honor (d)Stupid Incompetent Jerk (d)Stupid Incompetent Jerk

VENUE (What county can hear the case?) Where child resides Where child resides Where child is found Where child is found Where the acts took place Where the acts took place Where circumstances of the petition exist Where circumstances of the petition exist

SCOPE OF DEPENDENCY JURISDICTION Once a petition is filed; Once a petition is filed; 1.EXCLUSIVE over custody, visitation 2.Must determine paternity if not already established-EXCLUSIVE 3.May issue restraining orders (broad powers) THROUGHOUT dependency and then at termination of dependency

CONSIDER: Most referrals do NOT result in court action. Most referrals do NOT result in court action. Child does not have to be removed from home in order for authoritative intervention. Child does not have to be removed from home in order for authoritative intervention. At every hearing, court MUST keep child at home, or return to home, UNLESS certain facts are found to describe the child’s risks. At every hearing, court MUST keep child at home, or return to home, UNLESS certain facts are found to describe the child’s risks. Court must make specific legal findings. Court must make specific legal findings.

TIME MATTERS……..

In re I.G. [11/02/05] 133 CA 4 th 1246 Child was 2 days old when first detained in 2001 Child was 2 days old when first detained in 2001 Placed w/relatives Placed w/relatives In Jan on the first appeal, Court of Appeal ordered juvenile court to set a hearing IMMEDIATELY;to consider termination of parental rights. Finally set for Dec In Jan on the first appeal, Court of Appeal ordered juvenile court to set a hearing IMMEDIATELY;to consider termination of parental rights. Finally set for Dec Second appeal: Court VERY UNHAPPY Second appeal: Court VERY UNHAPPY

In re I.G. “It is well recognized that timeliness is of vital importance in juvenile dependency matters because delay usually does not serve a child’s interests….” “It is well recognized that timeliness is of vital importance in juvenile dependency matters because delay usually does not serve a child’s interests….” “The delay in these proceedings is inexcusable.” “The delay in these proceedings is inexcusable.”

HEARINGS and TIME LINES Initial Hearing/Detention Initial Hearing/Detention Petition filed w/in 48 hours after removal by social worker or police Petition filed w/in 48 hours after removal by social worker or police Detention—next judicial day Detention—next judicial day Court must return UNLESS…. Court must return UNLESS…. If no return; visitation, services, etc If no return; visitation, services, etc Set next hearing Set next hearing

JURISDICTION HEARING Purpose: Determine if the allegations of the petition are true and if the child is described by one of the applicable statutes Purpose: Determine if the allegations of the petition are true and if the child is described by one of the applicable statutes When: If child detained, within 15 court days from detention; if not detained, within 30 days When: If child detained, within 15 court days from detention; if not detained, within 30 days How: Admission, Submission, No Contest, Contested Hearing How: Admission, Submission, No Contest, Contested Hearing What: Preponderance of the evidence What: Preponderance of the evidence

DISPOSITION Purpose: Decide what to do—should child be a dependent? Live where? W/whom? Services? Purpose: Decide what to do—should child be a dependent? Live where? W/whom? Services? When: If child detained, within 10 court days from jurisdiction; no later than 60 days after detention or if EXCEPTIONAL circumstances found, 6 months from detention. When: If child detained, within 10 court days from jurisdiction; no later than 60 days after detention or if EXCEPTIONAL circumstances found, 6 months from detention.

OPTIONS at Disposition Dismiss Petition Dismiss Petition Order Informal Services Order Informal Services Guardianship w/or w/out dependency Guardianship w/or w/out dependency Dependency at home Dependency at home Dependency – Removal to Other Parent, Relative or Foster Care Dependency – Removal to Other Parent, Relative or Foster Care Clear and Convincing Evidence Substantial Danger to the Child Reunification Services Visitation

REVIEWS Family Maintenance: At least every 6 months throughout dependency Family Maintenance: At least every 6 months throughout dependency Family Reunification: Family Reunification: 6 months from jurisdiction or 6 months from 60 days after child removed 6 months from jurisdiction or 6 months from 60 days after child removed 12 months from jurisdiction or 6 months from 60 days after child removed 12 months from jurisdiction or 6 months from 60 days after child removed 18 months from date child removed 18 months from date child removed

AT EACH REVIEW If child at home--Dismiss dependency UNLESS… If child at home--Dismiss dependency UNLESS… If child out of home—RETURN UNLESS… If child out of home—RETURN UNLESS… Continue or terminate reunification services Continue or terminate reunification services TIME LIMITED! TIME LIMITED! Maximum---18 months after initial removal Maximum---18 months after initial removal

HEARING UNDER SEC Purpose: To select the best permanent plan for the child When: Within 120 days after services terminated (or denied.) Limitations: Cannot go back! Cannot send the child home Cannot offer more services Order of preference: Adoption Guardianship Long Term Foster Care

Welf & IC § [.26 Hearing] Court CANNOT RETURN CHILD at this hearing Court MUST TERMINATE PARENTAL RIGHTS and place child for adoption IF court finds the child is likely to be adopted unless detrimental to child for one of 6 specific reasons Court may not consider quality of potential adoptive home Fact that there is not an identified adoptive parent not relevant

HOW DECISIONS ARE MADE Social Worker’s Reports (MANDATORY) 2.Testimony and/or other documents 3. Arguments presented 4. Conferences 5. Experience and community knowledge 6. CASA REPORTS