FEDERAL APPELS COURT FINDS DCFS TACTIC UNCONSTITUTIONAL

City: Sacramento, CA

As families gather for the holidays, a recent ruling from the Ninth Circuit Court of Appeals offers hope to hundreds of thousands of parents haunted by the nightmare of unproven child abuse allegations.

For years, attorneys with Pacific Justice Institute have warned parents that, once CPS decides to investigate them for child abuse - sometimes based on anonymous tips from neighbors or vindictive ex-spouses - their names can end up on California's Child Abuse Central Index (CACI). Parents are listed on the CACI even when CPS eventually deems the charges "inconclusive" and closes its files. The CACI listing shows up on background checks for years to come and prevents parents from obtaining jobs or state licenses.

In Humphries v. County of Los Angeles, the Ninth Circuit Court of Appeals sharply criticized the ease with which people are listed on the CACI and the obstacles which prevent their names from being removed. The court was also troubled by a study indicating that as many as half of the more than 800,000 individuals listed on the CACI "may have a legitimate basis for expungement." Calling the list "the reverse of the presumption of innocence in our criminal justice system," the court ordered the state to enact greater procedural safeguards.

PJI President Brad Dacus commented, "It is gratifying that the Ninth Circuit has acknowledged what we have been saying for years-that treating parents as criminals when they are never convicted of a crime is unjust. We call on the legislature to finally fix this broken system in a way that honors basic constitutional rights."

Karen Milam, who directs PJI's Southern California office, stated, "Every year, PJI is inundated with hundreds of calls from desperate parents who do not understand how they could be labeled as child abusers based solely on unproven suspicions. This ruling is an important step toward keeping CPS honest."

DCFS + DEPENDANCY COURT = NIGHTMARE!

The more you know the worse it is, at least in dealing with DCFS. Each day he meets with his clients attorney Howell says, he listen to horror stories about how their family has been torn apart by the intervention of DCFS.

It is thus ironic that the intent of the legislature regarding Welfare and Institutions Code Section 300 is that..."[n]othing in that code section should be used to disrupt the family unnecessarily or intrude inappropriately into family life, prohibit the method of parental discipline, or prescribe a particular method of parenting."

The facts are, at least in Los Angeles County that DCFS most often acts in a way that violates the legislative intent. In my own practice I have had to defend many parents who were dealing with aberrant teen age behavior (usually the result of mental illness) or the normal tensions brought on by raising children in a poor economy (translate that as poverty).

Discipline is also a big issue, as the dependency courts continually find that spanking a child is jurisdictional and remove the child from the parent. Finally, the most egregious intervention into family life is when DCFS is not in agreement with a parent’s method of raising their children.

These allegations are the most insidious, because they usually add other allegations to hide their true intent. However, the most tragic and far reaching allegation used to destroy a family is an accusation that there is sexually inappropriate behavior, usually by the father. When this happens DCFS immediately begins to drive a wedge in the family, insisting the mother seek a restraining order, commences a divorce and never allow the father around the children again.

These families usually never recover from this intervention. What furthers the tragedy is that the father is still being labeled a sex offender, yet has none of the protections that would have been afforded him if he were charged criminally (in most my cases there is no criminal charge).

Adding to this tragedy is that the victim (especially if it is a teenage girl) often recants, admitting it was a false allegation used to gain power in a family where she did not like the rules being imposed on her. In several of my cases I have tried to have the matter reheard, without success.

Thus, I must participate in an event that results in the destruction of a nuclear family unit. Statistics indicate that the national average for returning children to their families is 80%, but the average in Los Angeles is closer to 30%.

Thus, if your children are placed into the custody of DCFS, it is twice likely in Los Angeles County than for the rest of the country that they will never return home.

Finally, attorney Howell said, he attended a conference for attorneys who represent parents in which one of the speakers, a well respected child psychologist with more than 20 years of dealing with DCFS, noted that in her experience, children removed from the home (even the home of the abuser) are more likely to suffer severe emotional trauma than if they had been left in the home with their abuser. Welcome to the real nightmare.

CRIMINAL COURT vs. DEPENDENCY COURT TRIAL

You would have more rights in criminal court than you do in dependency. Some examples:

1.If you are charged in a criminal case and you request a lawyer you are immediately provided with one.
a) In dependency the Social Workers interview parents without any right to an attorney and if you request one, they will remove your children (if they haven’t done that already).

1.Once charges are filed in a criminal case you know what you are facing and if they can’t prove the charge as it is written, then you are acquitted.
a) In dependency, if they don’t prove the allegation as written, the judge can ‘…conform it to the proof’ offered at trial and rewrite the allegation.

1.At a criminal trial, hearsay is for the most part not going to be admitted as evidence.
a) In dependency there is an exception in Welfare and Institutions Code that allows for almost all hearsay to be admitted, at least that generated by DCFS.

1.In criminal court the prosecution must turn over all evidence in a timely fashion.
a) In dependency, you can be presented with evidence on the day of trial and you have to deal with it, even if you object.

1.In criminal court the prosecution must notify you of all witnesses being called, and do so well in advance of the trial.
a) In dependency, you can be presented with the County’s witness list on the day of trial and you have to deal with it, even if you object.

1.In a criminal trial you have the right to a trial by jury of your peers.
a) In dependency you only get the judge or commissioner or referee.

1.In criminal court there is the prosecution and the defense.
a) In dependency there is County Counsel (prosecution), minor’ counsel, and counsel for the other parent. You can find yourself in trial with ALL of them against you.

1.Finally, the burden of proof in a criminal matter is beyond a reasonable doubt.
a) In dependency the burden of proof is a preponderance of the evidence, or ‘more likely than not.’ Not really much of a burden for the County Counsel.

The lesson here is be prepared for the fact that the system is HEAVILY weighted against a parent in dependency court. Although you may be appointed an attorney by the court, consider whether or not that attorney will provide you with the best representation possible, because you’re going to need it!