LEGAL GUIDE
Written by attorney Mark L Tseselsky | Oct 5, 2010

California Social Workers Took Your Kid: What do you do? Answers in simple English

This article is not designed to be comprehensive introduction to juvenile dependency law. It is addressed to a parent in California who is scared and does not know what to do because the social workers just took your child. I will try to avoid using confusing legal terms. The goal of this article is to translate the legalese into simple English. I am going to outline the roadmap of a juvenile dependency case, but I am only going to talk about detention hearing here.

There are a couple of ideas I want to share with you first. This idea is so important I am putting it ahead of every other idea: The court makes the decisions about your child, not the social worker! The social worker has a right to convince the court, but so do you. So don’t give up.

The second most important idea is that you should talk to a lawyer before you talk to a social worker. The magic words to say to a social worker are: I want to have a lawyer present when I talk to you. Believe me the social workers will make it very hard on you if you refuse to talk to them without a lawyer. Their only purpose in talking with you is to gather evidence against you. So be strong. You have the right to have a lawyer present!

Here is a roadmap of the HEARINGS in a juvenile dependency case in California.

Initial Detention

(Some Courts will set up a hearing regarding placement pending trial)

Jurisdictional

Dispositional

Judicial Review of Placement With Parent (Six Month Review, Twelve Month Review, and Eighteenth Month Review)

Status Reviews

Selection and Implementation

Initial Detention

Some of the issues at initial detention are: Did social worker show risk of harm if child is returned to the parent? Was social worker’s petition filed on time? Did the social worker give enough notice to the parent? Did the social worker try prevent the need to remove the children? Does the court have the power over individual child or parents? Did the social worker try to place with relatives?

I will try to hit the most important ones.

Prima Facie (At first sight) Did the social worker show that the child is at risk if he or she stays with the child?

Prima facie is a Latin expression meaning at first sight or examination. Prima facie standard means that the court will treat what social worker says as true unless and until someone contradicts the allegations.

The standard at detention is found in Welfare and Institutions (WIC) section 319:

The child will be returned to the parent unless the social worker has made a prima facie showing that

(1) What happened to the child fits the definitions in WIC section 300;

(2) It is bad for the child to stay with the parent and

(3) Any of the following:

a. If the child is not removed there is substantial danger to the child’s physical health or the child is suffering from severe emotional damage and there are no reasonable means to protect the child without removal,

b. There is substantial evidence the parent is likely to run away with the child

c. The child has already run away from a previous placement, or

d. The child does not want to come home and had been physically or sexually abused by someone living there. (WIC 319; California Rules of Court [CRC], rules 5.676, 5.678.)

This was a lot of legalese so let’s summarize why the standard is low at a detention hearing. The court is not deciding whether the allegations in the petition are true but rather whether there is a showing of risk of harm to the child enough to keep the child from his or her parents.

Still, you have rights and ways to fight the detention even at this early stage. You can present evidence (WIC 319; CRC rule 5.674(a).) You also have the right not to say anything. You can confront and cross-examine anyone examined by the court during the hearing. Most important, you can ask questions (cross-examine the preparer of any reports submitted to the court). If you request to ask questions and the preparer of the reports is not made available, then the court may not consider that report or document in making its decision. (WIC 311(b); CRC, rule 5.674(d).)

Another powerful tool is asking for another detention hearing to present more evidence within 3 days without counting the weekends and holidays. If a witness is not available, the court may continue the hearing for no more than 5 court days (excluding weekends and holidays). Be careful, instead of giving you another detention hearing the court can instead set the trial on the truth of the allegations (adjudication or jurisdictional hearing) within 10 court days. (WIC 321; CRC, rule 5.680(d).)

TIMING

If the social worker detained your child, he or she must file the petition within 2 business (court) days and the detention hearing must take place by the end of the day after the petition was filed. (WIC 313, 315; CRC, rule 5.670(b) & (d).)

Translated into English it means that you should get your day in court by the third day without counting Saturdays, Sundays, and holidays.

NOTICE

If the social worker detained your child, the social worker must give you notice of when and where you get your day in court no less than 24 hours in advance of the detention hearing (WIC 290.2.)

JURISDICTION OR POWER OF THE COURT OR WHERE IS HOME?

This is about what state or country is considered your child’s home. If your child has been in California for less than 6 months, then the question of jurisdiction (power of the court to hear your case) should be addressed.

PLACEMENT WITH RELATIVES

Keep in mind that because the standard is so low at the detention hearing, you have to prepare in case your kids are detained. The minute the social worker contacts you, talk to your relatives or people who have a strong relationship with the child to see if they will be willing to act as temporary placement. Submit a list of these folks to the social worker, in writing! Be sure to provide their phone numbers and addresses.

Additional resources provided by the author

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