In calif I have found a decent attorney who has pointed out a fact about my case and that is the court has no evidence that my child suffered any physical harm (ie the report stated my child appeared healthy and happy) the order to keep my child was based on a presumed risk of future harm because of my past history of drug abuse I could relaps anytime and then possibly harm or neglect my child if I was under the influence.
My court appointed lawyer didn't want to put forth any effort and mainly just tried to make me comply with the cps workers suggestions of services and basically did nothing for me and my rights. I hired a private attorney who my husband knew as he grew up near him. We called to ask for a refference and he claimed to be knowledgable in these kinds of issues and said he could do it no problem. This guy knew nothing of case law or juvenile laws, he did no research or motions to the court on my behalf. He even lost some evidence and ruined my trial with his services. I asked him to file the writ petition he asked for 1000 more to do this knowing the 7 day time frame. I gave him a check right away and didn't here back from him for almost two months. Where he then sends me a letter saying I can file the writ late based on his confession of not doing it. But then stated that my chances were zero based on the facts presented at trial. And I should consider the case over with. He sent a bill showing the payment of 1000 recently received along with other stupid charges like a ph call to the cps lawyer for 15 min and charges 500 on the same invoice charges another ph call for 15 min 62.50 thats crazy! I had no evidence presented at trail because he lost some of it and didn't show the court the rest of my deffence I had put together myself for him.
How hard is it to prove inefective counsel and lack of legal abilities in this area of law? He tells my new lawyer that he had only done one other case prior to taking mine on. He had no clue what he could have done for me. My child was abused in foster care so badly its just horrible to know no one cared to do the right thing and fight for this childs right to be home with loving parents. The foster parent was never held accountable for the year of abuse she inflicted upon my child causing her to delay in walking due to being constantly restrained to a carseat for hours and hours everyday. I need to find case law that states there must be a conection of the parents behavior to have effected the child in some way. If there is none and only a presumed risk of future harm that is not enough to terminate the parental rights. Does anyone know of any cases that might help me in calif?
I am not admitted in California but my answer is based upon general principles of CAPTA and ASFA, two federal statutes that govern state's handling of child abuse prevention and treatment and the adoption of children.
In the typical drug allegation situation, just like with Munchhausen's by Proxy, the state will remove your child from you for an extended period of time. This is accompanied by copious amounts of federal money paid into the state's treasury for the handling of your case. The judge gets "attaboys" on his annual review, government lawyers get "attaboys" as well on theirs and the private lawyer gets rewarded by not rocking the boat and keeping his license to practice law safe.
The length of the removal depends largely upon your compliance with terms and conditions imposed upon you by the foster care agency and the child protective service. A five year foster care stay is not out of the ordinary even though ASFA caps the stay at between 12 and 15 months. There will be drug testing by unknown pathologists, parenting classes, anger management, psychological testing and numerous other intrusions into your life while you child is kept from you. Once you achieve visitation, it will be supervised at “agency discretion”. “Faith based” initiatives meet the public at this point. Church groups will typically provide the foster homes.
You cannot reasonably expect a local attorney to stand up to this machine. Your local appellate division guides the judge via its appellate power to reverse the judge's orders. The appellate division hosts the psychologists by its authority to appoint experts for its courts. It also certifies and appoints childrens' attorneys. It authorizes foster care agencies.
Your lawyer simply cannot make a discovery demand of an agency because the judge controls compulsion of discovery. Your lawyer cannot have other psychologists see your children because rules of privacy prohibit his ability to introduce evidence without the court's order. Whether the psychologist has any background in children, drug addiction, depression or the delivery of mental health services is irrelevant because the appellate division has certified him: his "recommendations" become the law of the case. So, the agency and the child protective service present its case. Your case gets precluded by the denial of your ability to present experts in your defense and all of your fact witnesses will be ruled “cumulative”. The burden of proof in fact finding is “preponderance of the evidence” so the government wins every time. By the time they have built their case against you, the burden of proof increases to “clear and convincing” and by that time, your case is done. Your child will remain in placement and now you go through semi-annual permanency hearings.
Incidentally, this ability of the state to enforce compliance with its directives while your child is withheld is a larceny by extortion that is making its way into all matrimonial practice. This phenomenon is occurring nation wide. That is to say that one can expect during the course of a typical divorce, a judge can flip custody and compel a parent to see a "therapist" for the purpose of shaping divorce litigation as desired. Huge sums of money can be cut loose from the losing parent while she chases down "therapists".
When enough money is shaken loose from these litigants, the recipients can shape elections, acquire property and control local populations while maintaining their network. Your attorney will lose his license if the judge writes a letter to his disciplinary committee telling them of his “antics” during a case.
I cannot offer you legal advice over the internet except that you should read the two statutes. Nevertheless, I hope this helped.
