1. COURT PROCEDURES Roger B
COURT PROCEDURES Roger B. Coffman Adapted 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 §
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 § , 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 WORKERS MARS 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. CONCEPTUAL DIFFERENCES: SOCIAL WORK THEORY vs LEGAL THEORY
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

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 COURT Who are all these people???

15. Participants in a Dependency Proceeding
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

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. Role of the Attorneys
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

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

22. Stages of a Juvenile Court Dependency Proceeding

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

24. Before Protective Custody
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

25. PROTECTIVE CUSTODY

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

27. PROTECTIVE CUSTODY Welf. & 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 CUSTODY Before placing a 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/ imminent and substantial threat to the child’s life or health.
= Exigent Circumstance

29. PROTECTIVE CUSTODY Before placing a 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/ imminent and 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. PETITION Welf. and Inst. Code §§ A 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. WHICH PETITION DO I USE? 300/342/387/388
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. 10 TYPES OF ABUSE/NEGLECT WELFARE AND INSTITUTIONS CODE §300
A. Physical Abuse
B. Neglect
C. Emotional Abuse
D. Sexual Abuse
E. Severe Physical Abuse to Child <5yr

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

42. INITIAL HEARING (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 HEARING Legal 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 HEARING Potential 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 HEARING Welf. & Inst. Code § 345-356

47. JURISDICTION HEARING Key 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 HEARING Welf. & Inst. Code §§ 358 – 362.4

51. DISPOSITION HEARING Key Issues
Must be conducted within 10 court days
Should child be declared a dependent?
Should child be removed from home?
With whom should the child reside?
Should parents receive reunification services? If so, what services?
Has the social worker made reasonable efforts to prevent or eliminate the need for removal?
What visitation: Parents? Sibs? Grandparents?
What is the concurrent plan?

52. DISPOSITION HEARING: Test for Removal – §361
No dependent child shall be taken from the physical custody of his or her parent or guardian unless the court finds by clear and convincing evidence there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child or would be if the child was returned home, and there are no reasonable means by which the child's physical health can be protected without removing the child from the child's parents' physical custody.

53. DISPOSITION HEARING
Clear and convincing evidence generally means that the judge has no reasonable question in her or his mind as to the truth of the matters at issue.
Evidence that is of such a nature so as to require the assent of every reasonable mind.

54. DISPOSITION HEARING: Potential Outcomes
Don’t declare dependency and dismiss case
Sustain the petition, but don’t declare dependency and order services
Declare dependency & leave child in home
Declare dependency, remove child & place with previously non-custodial parent
Then dismiss case with custody orders, or
Order FMS for PNCP
Order FMS for PNCP and FRS for PCP

55. DISPOSITION HEARING: Potential Outcomes
Declare dependency, remove child & order family reunification services
Declare dependency, remove child, deny services and set § hearing
Declare dependency, remove child, and appoint legal guardian

56. Placement Preferences
Parent or previously noncustodial parent
Suitable relative or NREFM
Tribal member
Siblings together
Foster home within county
Foster home outside of county
Group home or community care facility
Cannot consider race or ethnicity (MEPA)

57. RELATIVE PREFERENCE
The social worker must make a diligent effort to locate an appropriate relative – FC § 7950
The social worker must give primary consideration to placing the child with a relative – WIC § 281.5
The social worker must give preferential consideration to placement with certain relatives – WIC § 361.3

58. Placement Outside of U.S.
Social worker may not place outside of U.S. unless: 1. Required by federal law or treaty 2. Is in best interests of child, considering: placement w/relative, placement w/siblings, relationship w/caretaker, needs of child, desires of child over 12

59. VISITATION WIC §§ 361.2, 362.1
PARENTS: court must order parental visitation “as frequent as possible, consistent with the well-being of the child”, unless detrimental
SIBLINGS: court must order sibling visitation unless there is clear & convincing evidence of detriment
GRANDPARENTS: court must consider grandparent visitation

60. Under What Circumstances May. the Court Deny Reunification
Under What Circumstances May the Court Deny Reunification Services to a Parent? (AKA “Bypass” Case) WIC § 361.5(b), (e)

61. Under What Circumstances May the Court Deny Services?
Whereabouts unknown
Mental disability
300a or 300d again
Caused death of another child
300e case
Severe physical or sexual harm
Child conceived as result of sex offense
Willful abandonment
Violent felony conviction
Failure to reunify with child’s sibs
Prior TPR
Chronic drug abuse

62. Under What Circumstances May the Court Deny Services?
Parent waives services
Prior child abduction
Incarcerated parent
Registered sex offender
“Mere biological father” (services discretionary)

63. SPECIAL CONSIDERATIONS IN DOMESTIC VIOLENCE CASES
The address and phone number of the domestic violence victim are confidential – do NOT include in court report or discovery!
Separate case plans must be prepared for the victim parent & batterer parent
Separate visitation arrangements

64. ON WHAT DATE DOES THE REUNIFICATION TIME CLOCK START RUNNING?

65. “Date Child Entered Foster Care”
For 6 month case, at disposition.
12 month case; the reunification time clock starts running on “the date the child entered foster care.”
The “date the child entered foster care” is:
The date the court found the petition to be true, OR
60 days after the date of detention,
WHICHEVER IS EARLIER.

66. SIX MONTH REVIEW HEARING Welf. & Inst. Code §§ 364, 366.21

67. SIX MONTH REVIEW HEARING Key Issues
Must be conducted within 6 months of disposition hearing.

68. SIX MONTH REVIEW HEARING Family Maintenance case
Review need for continuing supervision
Dismiss case
Continue FMS

69. SIX MONTH REVIEW HEARING Family Reunification case WIC 366.21(e)
1. Can the child safely return home
The Court shall return the child home unless substantial risk of detriment if returned home.
2. Substantial risk of detriment.
● Failure to participate regularly and make substantive progress in court-ordered programs is prima facie evidence of detriment.
3. SW must make reasonable efforts.

70. REASONABLE EFFORTS
The record must show that the social worker (1) identified the problems leading to the loss of custody, (2) offered services designed to remedy those problems, (3) maintained reasonable contact with the parents during the course of the service plan, and (4) made reasonable efforts to assist the parents in areas where compliance proved difficult." In re Riva M. (1991) 235 Cal.App.3d 403, 414.

71. Question: Under What. Circumstances Can the Court Stop
Question: Under What Circumstances Can the Court Stop Services at 6 mo?

72. ANSWER
Court sustained 300g petition and parents’ whereabouts still unknown, OR
Failure to visit & contact child in six months, OR
A 388 petition is filed alleging facts which make reunification unlikely or facts which would have permitted the court to order no services under 361.5(b).

73. Child Under 3
Child was under 3 at time of initial removal, or member of sibling group, and parent fails to participate regularly and make substantive progress, the court may schedule a hearing.
Unless the court finds a substantial probability that the child may be returned home within 6 months or reasonable efforts have not been provided.

74. 12-Mo. PERMANENCY HEARING Welf. & Inst. Code § 366.21

75. 12-Mo. PERMANENCY HEARING Potential Outcomes
Family Maintenance case
Dismiss case
Continued FMS (but without fed funding)

76. 12-Mo. PERMANENCY HEARING Key Issues in FR Cases
Must be conducted within 12 months of “the date the child entered foster care”
Can the child safely return home?
Failure to participate regularly and make substantive progress in court-ordered programs is prima facie evidence of detriment.
What have the parents done to reunify?
What has the social worker done to help the parents reunify?
Should the parents receive more services?
If child is 16 years/+ have they received ILP?

77. 12-Mo. PERMANENCY HEARING Potential Outcomes FR Case
Return child to parent with FMS
Continued FRS for 6 months, but:
Services not to exceed 18 months from date child originally removed from physical custody of parent.
Court must find substantial probability child will safely return home by 18 month date. Show this by:
Consistent visits
Significant progress in resolving problems
Parent has shown capacity and ability to complete case plan and safely provide for child.

78. 12-Mo. PERMANENCY HEARING Potential Outcomes FR Case
Terminate FRS and set hearing within 120 days.
Order LTFC/PPLA
If SW can show by clear and convincing evidence that it is not in the child’s best to set a hearing.
SW must also show, for any child 10 years/+, reasonable efforts to maintain relationships with individuals important to the child. (Other than siblings.)

79. 18-Mo. PERMANENCY HEARING Welf. & Inst. Code § 366.22

80. 18-Mo. PERMANENCY HEARING Key Issues
Must be conducted within 18 months of date of “protective custody” - not DCEFC
Can the child safely return home?
What have the parents done to reunify?
What has the social worker done to help the parents reunify?
Services may be extended to 24 months if parent recently released from prison or drug rehabilitation and reunification is likely.

81. 18-Mo. PERMANENCY HEARING Potential Outcomes
Family Reunification case
Return child to parent with FMS
Terminate FRS and set hearing
Order Long Term Foster Care/Planned Permanent Living Arrangement
If child is 10+ and in LTFC, who are individuals important to child?

82. SELECTION AND IMPLEMENTATION HEARING Welf. & Inst. Code § 366.26

83. SELECTION AND IMPLEMENTATION HEARING
Must be conducted within 120 days of date reunification services denied or terminated
Court must choose one of five outcomes:
Adoption / Terminate parental rights
Guardianship
Long-term foster care / PPLA
Continue 180 days to identify adoptive home
Tribal customary adoption
Two legal issues
Is the child likely to be adopted?
Would TPR be detrimental to the child?

84. Seven Reasons the Court May Not Terminate Parental Rights
1. Parent has maintained regular visitation and contact & child would benefit from continuing the relationship, or
2. Child age 12 or older objects to TPR, or
3. Child is placed in residential treatment facility and adoption is unlikely, or

85. Seven Reasons the Court May Not Terminate Parental Rights
4. Child is placed with foster parent, or Indian Custodian who is unable to adopt due to exceptional circumstances & removal from home would be detrimental to child, or
5. TPR would cause substantial interference with a sibling relationship, or

86. Seven Reasons the Court May Not Terminate Parental Rights
6. The child is an Indian Child and there is a compelling reason that terminating parental rights would be detrimental such as:
Interference with child’s connection to tribe
Interference with child’s tribal membership rights
Child’s tribe has identified a different permanent plan, including tribal adoption

87. Seven Reasons the Court May Not Terminate Parental Rights
7. Child living w/relative who is unable or unwilling to adopt, but not unwilling to accept legal or financial responsibility, can provide permanence and removal would be detrimental.

88. SPECIAL SECTIONS EFFECTING ADOPTION CASES

89. Prospective Adoptive Parent
Court may designate the current caretaker as a prospective adoptive parent if;
The child has lived with the caretaker for at least 6 months;
Caretaker wants to adopt, and;
Has taken at least 1 step to adopt.

90. Reinstate Parental Rights
If no adoption after at least 3 years
Adoption no longer the PP
Child files 388 pet.
Juvenile Court can reinstate parental rights

91. POST-PERMANENCY HEARING Welf. & Inst. Code § 366.3

92. POST-PERMANENCY HEARING Key Issues
Must be conducted every six months until case is dismissed
What efforts are being made to make or finalize the permanent plan?
Has the adoption been finalized?
Can the case be dismissed?
Persons Important to the Child

93. Dismissal for Child Who Reaches Age 18
WIC § 391
Child must be present at hearing unless child declines or whereabouts unknown
Social worker must prepare special court report describing child’s readiness for emancipation
Child must sign Judicial Council Form JV-365 “Termination of Dependency Jurisdiction (Child Attaining Age of Majority)” unless the child is unavailable or refuses to sign the form.

94. Non-minor Dependent
Former minor may continue under court jurisdiction if:
1. Completing high school or equivalent.
2. Enrolled in post secondary (college) or vocational education.
3. Participating in program to remove barriers to employment.
4. Employed at least 80 hours per month.
Unable to meet one of the above criteria due to a documented medical condition
Live in approved placement. Participation is voluntary.
Parents no longer parties. Review hearings held.

95. Rights of Foster Parents and Relative Caregivers

96. Rights of Foster Parents and Relative Caregivers
1. Right to receive written notice of review hearings - WIC § (b); Rule 1460(b)
2. Right to attend review hearings - WIC § (b)
3. Right to submit to the court in writing any information caretaker deems relevant - WIC §§ (b), (d), ; Rule 1460(b)(2)(B); Form JV-290 Caregiver Information

97. Rights of Foster Parents and Relative Caregivers
4. Right to maintain confidentiality - Health and Safety Code § 1536; c/f WIC 308
5. Right to receive a summary of the social worker’s recommendation for disposition 10 calendar days before the hearing - WIC § (c). Do not receive full report.
6. Right to receive preferential consideration for adoptive placement for freed child – WIC § (k)

98. Rights of Foster Parents and Relative Caregivers
7. Right to hire an attorney to represent the foster parent in court.
8. Right to receive a copy of the child's current health and education summary – WIC § 16010
9. Right to receive contact information for the social worker, child’s attorney and court – WIC §

99. Rights of Foster Parents and Relative Caregivers
10. Right to receive the child's Medi-Cal identification number or group health insurance plan number -- WIC §
11. Right to receive any available documentation or proof of the child's age that may be required for enrollment in school or activities that require proof of age.

100. Rights of Foster Parents and Relative Caregivers
12. Right to receive any medications or treatments in effect for the child at the time of placement, and instructions for their use -- WIC §
13. Right to receive a plan outlining the child's needs and services, including information on family and sibling visitation – WIC §

101. Rights of Foster Parents and Relative Caregivers
14. Right to receive a caregiver placement agreement at the time of placement -- WIC §

102. De Facto Parent
"De facto parent" means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period. Cal. Rule of Court 1412, subd. (a)(4)

103. De Facto Parent
De facto parents are entitled to be present at dependency hearings with counsel and to introduce relevant evidence that may assist the trial court in rendering a decision.
Standing to participate as a de facto parent does not entail all rights and preferences accorded to parents or guardians.
De facto parent status does not entitle a psychological parent to custody of the child, to visitation with the child, or to any degree of independent control over the child's destiny whatsoever. In re Kieshia E.

104. THAT’S ALL FOLKS