5429 Cahuenga Boulevard
N. Hollywood, CA 91601-2918
Tele: (818) 404-1170
Fax: (818) 508-1529
JUVENILE DEPENDENCY COURT AND FAMILY LAW
Both the Juvenile Court and Family Law Courts have jurisdiction over the issues of custody and visitation of children.
If there is a Juvenile Court Dependency Proceeding pending as to the custody of a child, the Juvenile Court's order takes precedence over Family Court orders, and the Family Court proceedings as to custody and visitation will be stayed. It is, therefore, important to understand the interaction between the two court systems and their effect on custody, paternity, and dissolution of marriage cases.
The Family Code governs matters heard in Family Law Court. The Family Law court is not a separate court of the Superior Court System. Family Court presumes it is in the best interests of children to have frequent and continuing contact with both parents and presumes parental fitness. In family law matters, parents can stipulate and agree privately between themselves to resolve privately issues of custody, visitation and property. That is not possible in Juvenile Court.
Juvenile Court is a separate Superior court and its Dependency Proceedings are governed by Welfare and Institutions Code (“W&I Code”). The purposes of Juvenile Court in Dependency Proceedings is to protect the safety of children. It restricts parental behavior; removes children from unsafe homes; gives children a sense of permanence; provides active leadership in the community. Juvenile Courts do not assume parental fitness due to the very nature of circumstances surrounding dependency proceedings. The Domestic Violence Prevention Act ("DVPA") applies to both Juvenile Court and Family Law matters. Hearsay may be allowed in limited circumstances in Dependency proceedings, but hearsay would be excluded in Family Law hearings. The Juvenile Courts have jurisdiction over custody and visitation, but not over support or division of property. Support and property are handled exclusively by the family law courts pursuant to the Family Code.
PRE-DEPENDENCY COURT FILING: Children usually come into the dependency system through the Child Abuse Hotline: 1 (800) CHILD ABUSE, or are reported by relative friend or Mandated Reporter. These calls are then screened by a Clinical Social Worker to assess the risk and weed out inappropriate calls such as child custody disputes, parent/teenage conflict, headlice on child, pregnant teen, poverty/lack of emergency shelter.
The Clinical Social Worker ("CSW") will assess whether the child should be immediately removed or whether less drastic measures can be implemented to maintain the family while still protecting the child and includes a case plan for the parents. Two such pre-removal methods are the “Voluntary Family Maintenance Contracts” (“VFM contracts”) and the “Voluntary Family Reunification Contract” (“VFR Contract”). The VFMs are valid for 6 months and are renewable. The VFRs voluntarily places children with approved relative, family friend or foster care provider and are valid for up to 180 days. It is important to remember that both the VFMs and the VFR are contracts and they are not orders! So, if there are family law orders in effect regarding custody, visitation, and restraining orders, the family law orders take precedence and must be followed. As a practical matter, if a hearing is pending in the family law courts on custody or visitation and the judge learns that the Dept. of Child and Family Services ("DCFS") is investigating the matter, the judge will usually continue the hearing pending the outcome of the DCFS investigation.
The findings of the DCFS investigation are classified as follows:
CACI is a database of suspected child abuse and severe neglect. Under recent law only “SUBSTANTIATED” reports are reported to CACI. CACI is available to 3rd parties: licensed agencies of the county, available for pre-employment background investigations and some out of state agencies. If "UNFOUNDED" reports are reported to the statewide reporting system CACI , the parent will need to file a grievance to have parent’s name removed. Being listed on CACI can, in some circumstances, interfere with a person's employment opportunities.
THE JUVENILE COURT DEPENDENCY SYSTEM:
There are a number of hearings in Dependency matters which include, in this order: Filing of the Petition; Detention Hearing, Jurisdictional Hearing, Dispositional Hearing, 6 month review hearing, 12 month permanency hearing, 24 month permanency hearing, W&IC 366.26 hearing, and Review of Permanent Order.
CONFIDENTIALITY: Dependency Court records are confidential. Recent changes in the law give family law and probate courts, judicial officers, parents and their legal counsel and Registered Domestic Partners (“RDPs”) access to Juvenile Court records, BUT access means right to view, THESE DOCUMENTS ARE NEVER TO BE ATTACHED TO A FAMILY LAW PLEADING. Doing so is a major breach of confidentiality and may subject the person disclosing such documents to sanctions or civil liability.
1. PETITION AND DETENTION HEARING: The petition is the legal document on which the court bases its jurisdiction.
The Detention hearing is the first hearing. The standard of proof is very low because not much is known about the case at this point. The County bears burden to establish a prima facie case, plus evidence of RISK OF HARM. County must prove child falls within W&IC 300(a)-(j). Everyone gets a lawyer, including the child. If a parent cannot afford a lawyer, one is appointed free of charge.
2. JURISDICTIONAL HEARING – This will be the next hearing and is held 30 days from the date of filing the Petition.
The Juvenile Court must have jurisdiction under Welfare & Institutions Code 300 (a) through (j)it has no power to issue orders regarding the child: The following is a brief synopsis of W&I C 300(a) - (j):
HEARSAY: Hearsay is allowed in Juvenile Court Dependency Proceedings in very limited circumstances.
AT THIS POINT, IF JURISDICTION IS PROPER UNDER W&I C 300, THEN THE JUVENILE COURT WILL HAVE EXCLUSIVE JURISDICTION OVER ALL MATTERS PERTAINING TO THE FOLLOWING MATTERS:
At this point, all litigation in family court concerning the custody and visitation of the child is STAYED!
3. DISPOSITIONAL HEARING –
The third hearing in a Dependency Proceeding is the Dispositional Hearing. The court makes a legal finding of whether child is dependent of the Juvenile court. The County has burden of proof by
A Case Plan will also be formulated and ordered at this hearing. A Family Maintenance Services, Plan may include Counseling services for child and parents, substance abuse programs. any measures to rectify issues that brought the child within jurisdiction of the court. If the child is returned to the home, a Family Reunification Services Plan may include counseling, substance abuse programs, visitation plans. Plans are for 6 months of services if child is under age 3 (from date of detention), and 12 months if over age of 3 (from date removed).
PLACEMENT IF CHILD REMOVED FROM HOME:
The court may deny Family Reunification Services and there are 16 grounds for denial of such services, such as a child under age 5 been severely abused, parent has two times failed or refused to participate in Juvenile court ordered treatment plan despite services to implement the plan being both available and accessible.
If Family Reunification services have been denied, a parent can ask for a contested hearing. The burden of proof shifts from the County to the parent and the standard of proof of clear and convincing evidence that Family Reunification is in the best interests of the child.
4. W&IC 366: REVIEW HEARING: Held every 6 mo from date of original dispositional hearing. The court will issue findings regarding:
5. REVIEW HEARINGS: TIME LINE:
6. MOTION TO MODIFY COURT ORDER (W&IC 388)
A W&I C 388 motion is very powerful and can be filed by anyone, including a nonparty. Must demonstrate a CHANGE OF CIRCUMSTANCES by preponderance of evidence AND that modification of the court's current order is in the best interest of the child. This motion can be FILED AT ANY TIME. The motion is filed with the court and then the Court determines if the motion will be heard. If so, will be set for hearing in 30 days
7. W&IC 366.26: SELECTION & IMPLEMENTATION HEARING: Parental rights can be terminated at this hearing.
8. REVIEW OF PERMANENT PLAN (RPP) will occur every 6 mo, or until jurisdiction is terminated, child turns 18, or graduates from high school. The purpose of the review is to determine if the permanent plan is being implemented in a timely fashion, and can plan be upgraded to a more stable, permanent plan, or for return to home of parent, or for legal guardianship, or adoption. Since 2012, the law now allows a child to stay in foster care until age 21.
NEGATIVE OUTCOMES OF DEPENDENCY SYSTEM (CA)
46% don’t complete HS compared to 16% of general population
Fewer than 10% of foster youth who graduate from HS go to college and
Fewer than 2% of those will receive a college degree
Youth homelessness and poverty
65% leave system w/o stable place to live – that is why the new 2012 law was passed to keep kids in until 21 if they chose
51% unemployed within 2 – 4 yrs of emancipation (aging out of foster care)
Crime: 70% of all state penitentiary inmates have spent time in foster care
POSITIVE OUTCOMES OF DEPENDENCY SYSTEM – DEPENDENCY IS A REHABILITATION COURT
Parents are empowered through resources and services.
Children who were previously living in horrendous circumstances are placed in safe environments.
Parents are forced to take responsibility for their circumstances and become productive members of society.
Children who are in desperate situations are given access to resources and an opportunity to grow and succeed.
HOPE FOR THE FUTURE: The 2012 change in the law allowing children to choose to remain in the system until they are 21 will, hopefully, give children a better chance at completing their high school and college educations, as well as secure job training and employment.
JUVENILE CUSTODY ORDERS are not family law orders or exit orders. Juvenile court orders must be filed in any existing and active family law custody case. Juvenile Court orders can be used as SOLE BASIS to open a file if no custody proceeding has been filed in Family Law court. The Juvenile Court, because its is governed by the Juvenile Code, has authority to make orders that extend beyond what the Family Law court could make. For instance, Family Code 3190 limits counseling orders for parents to no longer than 1 yr. The Juvenile court can order a parent to submit to counseling for indefinite period of time to eliminate the conditions that brought the child within the Juvenile Court’s jurisdiction. The Juvenile Court's orders will then be transferred to an existing Family Court file on termination of the Juvenile Court case, OR be the basis on which to file in Family Court.
The Juvenile Court can also make orders which terminate its jurisdiction and determine supervision of the Juvenile Court is no longer necessary, yet condition visitation on completion of programs that are designed to minimize or eliminate the danger that subjected the child to the same risks that led to dependency. It is important to note that the child, not the parent, is under the jurisdiction of the Juvenile Court.
When compared to family law custody orders, Juvenile Court orders are akin to PERMANENT custody orders (Montenegro Orders); NOT temporary orders.
MODIFICATION: In order to modify a Juvenile Court order, there must be a change in circumstances that demonstrate that the original Juvenile Court order is no longer in best interest of the child. Pursuant to W&IC 302(d) Juvenile custody orders CANNOT be modified by family law proceeding without SIGNIFICANT change of circumstances that show that modification is in best interest of child.
JUVENILE PROTECTIVE ORDERS: The Juvenile Courts may issue protective orders to either parent:
PROBATE COURT AND DEPENDENCY COURT GUARDIANSHIPS
Only two courts have the jurisdiction (power) to grant guardianships: the Juvenile Court and the Probate Court. Guardianships are to protect minors whose parents are still living. Guardianships are common for orphaned children, prevention of abuse or neglect, child has bonded with a nonparent or relative.
THE MAJOR DIFFERENCES BETWEEN THE GUARDIANSHIPS ISSUED BY THE PROBATE AND THE JUVENILE COURT IN DEPENDENCY PROCEEDINGS ARE:
PROBATE COURT GUARDIANSHIPS:
JUVENILE COURT GUARDIANSHIPS:
Once a guardianship is granted, the child cannot returned to the custody of a parent unless a proper petition for termination is granted Return to a parent must be in child’s best interest when balanced with the need for stability.
A very important difference between the two courts is that Probate Code 1513( c) requires referral of Probate Guardianships to DCFS whenever a parent is accused of unfitness because the Juvenile Court's Dependency safeguards do NOT extend to PROBATE. This referral is mandated to protect a child at risk. The Juvenile Court is better able to protect a child because it has access to investigations by the DCFS, parties and child are appointed counsel, and the Juvenile court has access to reunification and other services to offer the child and his family.
CONSENT TO PROBATE GUARDIANSHIP: Under Prob C 1513( c) referral to Child Protective Services not necessary when parent consents to guardianship . No finding of parental unfitness is required when parents consent. No deprivation of due process when parents stipulate to guardianship.
DEPENDENCY GUARDIANSHIPS: W&IC 366.26: If reunification fails, the Court will develop a permanent plan for the child. Guardianship suspends parental rights. Court must order visitation for parents, unless the court finds by clear and convincing evidence that the visit would be detrimental to child’s well-being. The order for visitation need not have specific days and times. The order can allow the guardian determine when visitation will take place, but the order must state whether the visitation will be monitored or not.
Probate guardianship can be temproary, if there is urgency and good cause. Notice must be given 5 court days before petition hearing. They are terminated according to PC 2257(a) when a permanent guardianship is appointed or 30 days.
EX PARTE TEMPORARY PROBATE GUARDIANSHIPS:
These can be issued without notice if there is good cause, such as parent threatens to abscond with child or there is Domestic Violence. These must be reconsidered by the court within 30 days.
TERMINATION OF GUARDIANSHIPS:
Terminates automatically at minor’s death, upon reaching 18, adoption, marriage or emancipation, or by court order. May be terminated if the court determines the guardianship is no longer in child’s best interest. In terminating a Guardianship, the court must consider effect on removing child from guardian, whether it is in the child's best interest to remove him from a long term stable environment.
PROBATE COURT AND DEPENDENCY COURT TERMINATION OF PARENTAL RIGHTS:
Parental rights may be terminated where:
W&IC 366.26 hearing is to determine permanent placement plan for the child and can be filed by a parent. If court determines child is likely to be adopted, child is “freed” and parental rights are terminated To prevail at this hearing, there are 5 exceptional circumstances that must be proven by a parent:
REINSTATEMENT OF PARENTAL RIGHTS:
Termination of parental rights is binding after the 60 day appeal period has lapsed
If child has not been adopted within 3 years, the child can petition for reinstatement of parental rights under W&IC 366.26. This must be in the best interests of the child and be established by clear and convincing evidence.