Howell & Howell Family Law Blog

The County of Los Angeles settled a civil rights action brought by the grandparents of two minors for the warrantless removal of the children from their home in violation of the family’s constitutional rights to familial association free from unwarranted government interference. The County of Los Angeles, while denying the allegations of the complaint, agreed to pay $220,000 to settle the case. Approval of the settlement by the Los Angeles County Board of Supervisors is pending. “RE: Marshall v. County of Los Angeles, et al.
Superior Court of California, County of Los Angeles
Case No. BC 377071
Judge: Hon. Kenneth R. Freeman, Dept. 64

www.howellfamilylaw.comPRWEB) March 19, 2009 — Frank and Ola Marshall, the maternal grandparents of the two minors who were removed from their home and detained in foster care for forty-four days in 2006, alleged that social workers removed the children in the absence of probable cause and without first obtaining a warrant to do so. The Marshalls also alleged that once the children were removed from the home, social workers intentionally fabricated evidence and suppressed material exculpatory evidence, among other things, as part of their effort to continue to detain the children. Email: rhowell@howellfamilylaw.comOur clients are hopeful this case will cause the County and its Department of Social Services to implement procedures to prevent future similar conduct by County social workers and protect other families. “

I often advise my dependency clients that they would have more rights in criminal court than they 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!

A friend of mine recently made me aware of a problem involving medicating foster children.  This is something I have had expereince with, in that I watched a 12 year old foster child come into court in shackles and drooling because she was over medicated.  When I finall got her to UCLA for a full physical and psych exam, it was discovered she had a tumor which contributed to the symptoms she had been displaying.  However, it was too late for her: she had gained 50 pounds, was diabetic, suffered undertermined side effects on her brain, and became infertile.  When first admitted to the hospital she was give 5 different psych medications.  This is a tragedy that happens everyday, but the confidentiality of children’s courts keeps these issues out of the public eye. For more info go to:  http://psychrights.org/pr/100125MatsutaniUnsealingNR.pdf

One of the most traumatizing things that can happen to parents and children is to have their children removed by the Department of Children and Family Services (DCFS). Unfortunately, DCFS conducts interviews of parents and children without a right to counsel first. Thus, they often discover information that they can use to justify taking the children, information they would not have gotten if in the parent(s) had the right to speak with an attorney first, or have an attorney present when they were interviewed.
So what can you do? You can refuse to be interviewed or you can ask to have an attorney present when you are interviewed, either of which may not prevent DCFS from detaining the children. However, it will give them less information to plead as to why your children should be detained from you. You may also assert your 5th Amendment right to not reveal information that may incriminate you. Understand, statements you make to social workers are discoverable by District Attorneys and should your case involve criminal charges, everything you tell a social worker can be used against you in a criminal proceeding.
What you should do is immediately contact an attorney qualified to practice in Dependency Court and seek counsel as to your rights and legal options. ADVISEMENT: The preceding is for informational purposes only and should not be construed or interpreted as legal advice.

What is domestic violence?
When two people reside together, have a relationship and engage in any type of violence towards the other (physical, emotional or verbal), it is considered domestic violence. Such behavior can result in criminal action, dependency court action, civil action or in the family law courts, it will be a factor the court must consider when dealing with child custody, visitation and support and it is a factor to be considered in spousal support.

What do I do if I am a victim?
There are many organizations in the Los Angeles area that assist parties who are victims of domestic violence (see our links page). Each person must decide how they will deal with their particular situation based on the facts and circumstances of your case. Seek assistance immediately.

What if the other person is not related to me or we have no relationship?
In this type of case, you will have to file for a civil harassment restraining order. These petitions are handled in much the same way as domestic violence petitions, but are usually heard in civil and not family law courts.

Do I need an attorney to file for protection?
No, most courts have a special office and personnel to help you fill out and file the necessary paperwork. However, if your circumstance is that you are involved with Dependency or Family law court, it is advisable to seek the assistance of an attorney.

At the Law Office of Howell & Howell, Robert Howell and Leslie Howell have extensive experience with these issues. Leslie Howell was trained and worked as a counselor for LACAAW (Los Angeles Commission on Assaults Against Women). Robert has litigated numerous domestic violence and civil harassment cases. Robert and Leslie have the experience and knowledge you need to protect all your rights domestic violence proceedings.