The Family Court Hearing - A Constitutional Defense

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Dazeemay
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The Family Court Hearing - A Constitutional Defense

Postby Dazeemay » Sat Jun 03, 2006 8:54 pm

This is quite informative and one should, even if you have a lawyer, know your rights because you cannot count on him/ her to know your Constitutional Rights for your hearing/s.

http://www.life-vs-cps.com/index_files/Page357.htm
**********************************
This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
http://www.parentalrightsandjustice.com/index.cgi?ctype=Page;site_id=1;objid=45;curloc=Site:1

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Dazeemay
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Joined: Sat Mar 05, 2005 1:07 pm

Postby Dazeemay » Fri Jul 14, 2006 6:54 pm

CHALLENGING THE JURISDICTION OF THE COURT has been added to the First Family Court Hearing.

This site is very informative to you as a parent and grandparent.

http://www.life-vs-cps.com/index_files/Page357.htm
**********************************
This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
http://www.parentalrightsandjustice.com/index.cgi?ctype=Page;site_id=1;objid=45;curloc=Site:1

User avatar
Dazeemay
Posts: 4135
Joined: Sat Mar 05, 2005 1:07 pm

WRIT OF HABEUS CORPUS

Postby Dazeemay » Mon Oct 23, 2006 6:15 am

**********************************
This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
http://www.parentalrightsandjustice.com/index.cgi?ctype=Page;site_id=1;objid=45;curloc=Site:1

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fightingfor3
Posts: 199
Joined: Tue Sep 26, 2006 5:40 pm

Postby fightingfor3 » Wed Nov 29, 2006 6:24 pm

Why couldn't I find you all before?! :lol:

User avatar
Dazeemay
Posts: 4135
Joined: Sat Mar 05, 2005 1:07 pm

Postby Dazeemay » Fri Dec 01, 2006 8:33 pm

I am sorry you missed it.

You had too much to absorb and I should have reemphasized it to you.

It was on this post.

http://fightcps.com/forum/viewtopic.php ... ght=#34605
**********************************
This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
http://www.parentalrightsandjustice.com/index.cgi?ctype=Page;site_id=1;objid=45;curloc=Site:1

Marina
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Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Apr 05, 2008 7:23 pm

.

http://www.aoc.state.nc.us/www/ids/Defe ... fenses.pdf

CONSTITUTIONAL DEFENSES IN DSS CASES

Maitri “Mike” Klinkosum
Winston-Salem, NC

The task of raising and preserving constitutional defenses is as important an
endeavor in DSS cases as it is in criminal cases. This is true for several reasons: (1) It
places DSS in the posture of having to defend and show why the allegations of each
particular case warrants the court’s action in setting aside fundamental right to parent; (2)
It provides the parent a potential avenue of appellate review if the constitutional
arguments are properly framed and preserved; and (3) It reminds the courts that they are
dealing with fundamental rights and matters of serious constitutional implications.
The 14th Amendment
The starting point for raising constitutional defenses in DSS cases must
necessarily begin with the 14th Amendment to the United States Constitution:
§ 1. All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
No constitutional challenge is complete without reference to the North Carolina
Constitution:
Art. I § 19. Law of the land; equal protection of the laws.
No person, shall be taken, imprisoned, or disseized of his freehold,
liberties, or privileges, or outlawed, or exiled, or in any manner deprived
of his life, liberty, or property, but by the law of the land. No person shall
be denied the equal protection of the laws; nor shall any person be
subjected to discrimination by the State because of race, color, religion, or
national origin.
Substantive Due Process
The US Supreme Court has held that Due Process Clause of the Fourteenth
Amendment provides more than just “fair process.” Washington v. Glucksberg, 521
U.S. 702, 138 L.Ed.2d 772, 117 S.Ct. 2258 (1997). “The Clause also includes a
substantive component that ‘provides heightened protection against government
interference with certain fundamental rights and liberty interests.” Troxel v. Granville,

530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), see also Reno v. Flores, 507 U.S.
292, 123 L.Ed.2d 1, 113 S.Ct. 1439 (1993).
In DSS cases, the liberty interest that is jeopardized is the interest of parents in the
care, custody, and control of their children. This liberty interest has been cited as perhaps
the oldest of the fundamental liberties recognized by the Courts.
80 years ago, the United States Supreme Court held that the one of the liberty
interests protected by the Due Process Clause was the right of parents to “establish a
home and bring up children” and “to control the education of their own.” Meyer v.
Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625 (1923).
Then, in Pierce v. Society of Sisters, 268 U.S. 510, 69 L.Ed.2d 1070, 45 S.Ct. 571
(1925), the Court went further and held that the “child is not the mere creature of the
State; those who nurture him and direct his destiny have the right, coupled with the high
duty, to recognize and prepare him for additional obligations.
This concept was again affirmed in Prince v. Massachusetts, 321 U.S. 158, 88
L.Ed.2d 645, 64 S.Ct. 438 (1944), when the Court stated that there is are constitutional
ramifications to the right of parents to direct the upbringing of their children. “It is
cardinal with us that the custody, care, and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for obligations the state can
neither supply nor hinder.
This liberty interest was expounded upon in several other cases where the United
States Supreme Court held that parents have a fundamental right to make decisions
concerning the care, custody, and control of their children.
It is plain that the interest of a parent in the companionship, care, custody
and management of his or her children comes to this Court with a
momentum for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements. Stanley v. Illinois,
405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972).
The history and culture of Western civilization reflect a strong tradition of
parental concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition. Wisconsin
v. Yoder, 406 U.S. 205, 32 L.Ed.2d 15, 92 S.Ct. 1526 (1972).
We have recognized on numerous occasions that the relationship between
parent and child is constitutionally protected. Quilloin v. Walcott, 434
U.S. 246, 54 L.Ed.2d 511, 98 S.Ct. 549 (1978).
Our jurisprudence historically has reflected Western civilization concepts
of the family as a unit with broad parental authority over minor children.

Our cases have consistently followed that course. Parham v. J.R., 442
U.S. 584, 61 L.Ed.2d 101, 99 S.Ct. 2493 (1979).
Much of the jurisprudence in this area came to a head in 2000 with Troxel v.
Granville, supra, when the Court stated “In light of this extensive precedent, it cannot
now be doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control
of their children.”
The North Carolina Supreme Court affirmed the protected liberty interest in
parenthood in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), when it held
that “absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their
children, the constitutionally protected paramount right of parents to custody, care, and
control of their children must prevail.”
“The government may take a child away from his or her natural parent only upon
a showing that the parent is unfit to have custody, or where the parent’s conduct is
inconsistent with his or her constitutionally protected status. Adams v. Tessener, 354
N.C. 57, 550 S.E.2d 499 (2001).
The NC Supreme Court has also stated that even if “a particular couple desirous
of adopting a child would best provide for the child’s welfare, the child would
nonetheless not be removed from the custody of its parents so long as they were
providing for the child adequately.” In re Nesbitt, 147 N.C.App. 349, 555 S.Ed.2d 659
(2001).
One of the most recent decisions concerning the fundamental right to parent is
Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003). However, Owenby not only
recognized the fundamental right of parents to the custody and control of their children
under the Due Process Clause, but also stated that the right is contained within the Equal
Protection Clause of the Fourteenth Amendment: “Indeed, the protection of the family
unit is guaranteed not only by the Due Process Clause, but also by the Equal Protection
Clause of the Fourteenth Amendment and possibly by the Ninth Amendment. Citing
Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972).
Procedural Due Process
Parents are also entitled to Procedural Due Process, which includes proper service
of process and notice of the proceedings. § 7B-1106.1 of the NC Juvenile Code provides
the rules by which notice of abuse/neglect/dependency proceedings are to be given to
parents and other interested parties:
(a) Upon the filing of a motion pursuant to 7B-1102, the movant shall
prepare a notice directed to each of the following person or agency,
not otherwise a movant:

(1) The parents of the juvenile.
(2) Any person who has been judicially appointed as a guardian of
the person of the juvenile.
(3) The custodian of the juvenile appointed by a court of
competent jurisdiction.
(4) Any county department of social services or licensed childplacing
agency to whom a juvenile has been released by one
parent pursuant to Part 7 of Article 3 of Chapter 48 of the
General Statutes or any county department of social services to
whom placement responsibility for the juvenile has been given
to a court of competent jurisdiction.
(5) The juvenile’s guardian ad litem if one has been appointed
pursuant to G.S. 7B-601 and has not been relieved of
responsibility.
(6) The juvenile, if the juvenile is 12 years of age or older at the
time the motion is filed.
§ 7B-1106.1 further provides for the content of the notice:
(b) The notice required by this subsection (a) of this section shall include
all of the following:
(1) The name of the minor juvenile.
(2) Notice that a written response to the motion must be filed with
the clerk within 30 days after service of the motion and notice,
or the parent’s rights may be terminated.
(3) Notice that any attorney appointed previously to represent the
parent in the abuse, neglect, or dependency proceeding will
continue to represent the parents unless otherwise ordered by
the court.
(4) Notice that if the parent is indigent, the parent is entitled to
appointed counsel and if the parent is not already represented
by appointed counsel the parent ma contact the clerk
immediately to request counsel.
(5) Notice that the date, time, and place of the hearing will be
mailed by the moving party upon filing of the response or 30
days from the date of service if no response is filed.
(6) Notice of the purpose of the hearing and notice that the parents
may attend the termination hearing.
For parents to receive procedural due process, the statutes regarding notice are the
beginning points for DSS and the courts to comply with constitutional mandates for
procedural due process.
“The notice requirements at issue are part of a statutory framework intended to
safeguard a parent’s fundamental rights “to make decisions concerning the care, custody,

and control of their children.” In Re Alexander, 158 N.C.App 522, 581 S.E.2d. 466
(2003).
“The fundamental premise of procedural due process is notice and the opportunity
to be heard.” In Re Padgett, 156 N.C.App. 644, 577 S.E.2d 337 (2003), quoting Peace v.
Employment Security Commission, 349 N.C. 315, 507 S.E.2d 272 (1998).
The 4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be seized.
While the 4th Amendment to the United States Constitution has been regarded as
an Amendment drafted exclusively for the province of the criminal courts, that notion has
begun to change, at least inasmuch as the conduct of child welfare investigators is
concerned. The case that has begun the change in the constitutional landscape in North
Carolina is In Re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).
On September 9, 2001, a social worker with the Cleveland County Department of
Social Services received a report that a two year old child had been seen naked and
unsupervised in the driveway of a house in Kings Mountain, NC. The social worker went
to the home to investigate and was met by the mother of the child. The social worker and
the mother spoke and the social worker told the mother why she had come to the home.
The social worker then told the mother that she (social worker) would need to speak with
all of the Stumbo children in private as part of her “investigation.”
Mrs. Stumbo then proceeded to call her husband at work to inform him of the
transpiring events. Mr. Stumbo then proceeded to speak over the telephone with the
social worker and attempted to explain why the two year old child had been in the yard
naked. Mr. Stumbo telephoned an attorney on the drive home and when he spoke with
the social worker, he told her that he felt he had a privacy right to refuse to allow her to
speak with the children. The social worker observed the children, but did not speak to
them, and in her observations she noticed nothing that would lead her to believe the
children were abused or neglected.
After the discourse with the father, the social worker left the residence. One week
later, the Cleveland County Department of Social Services filed a petition to “prohibit
interference with or obstruction of child protective services investigation.” The Stumbos
filed a response to the petition based, in part, on the protections of the 4th Amendment to
the US Constitution.
The trial court concluded that because the investigation did not involve a search
or a seizure, the 4th Amendment did not apply and no showing of probable cause was
necessary. The trial court further concluded that the Stumbos had obstructed and

interfered with the investigation by Cleveland County DSS by refusing to allow the social
worker to observe and interview the minor children. The trial court then ordered the
parents to allow DSS to conduct an investigation.
The North Carolina Court of Appeals affirmed the decision of the lower court in a
divided opinion and held that the case did not involve the 4th Amendment. In Re
Stumbo, 143 N.C.App. 375, 547 S.E.2d 451 (2001). Judge Edward K. Greene dissented
finding that the investigation involved a search within the meaning of the Fourth
Amendment.
The North Carolina Supreme Court reversed the decision of the Court of Appeals,
but not based upon Fourth Amendment grounds. The NC Supreme Court stated, “As we
have often noted, ‘the courts of this State will avoid constitutional questions, even if
properly presented where a case may be resolved on other grounds.’” In Re Stumbo, 357
N.C. 279, 582 S.E.2d 255 (2003), citing Anderson v. Assimos, 356 N.C. 415, 572 S.E.2d
101 (2002).
The “other grounds” utilized by the NC Supreme Court to reverse the Court of
Appeals were premised upon the statutory grounds for the initiation of a DSS
investigation:
…before any investigation is initiated or interference with any such
investigation ensues, the proper inquiry that must be made by DSS is
whether an investigation is mandated based upon the first report or
multiple reports that show a pattern of neglect. Having commenced a
N.C.G.S. § 7B-303 hearing, however, it is incumbent on the trial court to
first ascertain whether a report of abuse, neglect, or dependency triggering
the statutory mandates has been made.
The NC Supreme Court went on to state:
Thus, under the specific facts of this case, we conclude as a matter of law
that the anonymous report was insufficient to invoke the extensive power
and authority permitted by the General Assembly to the county
departments of social services.
The unique fact about this case for purposes of defending parents in abuse/neglect
cases, is that the dissent in the North Carolina Court of Appeals opinion and the
concurring opinion in the North Carolina Supreme Court opinion both indicate that the
statutory scheme, under which DSS must operate in investigating suspected child
abuse/neglect, implicates the Fourth Amendment to the United States Constitution.
Entry into the home of a person suspected of child abuse/neglect by the
Director for the purpose of ascertaining if the child has been
abused/neglected is a search by a government actor and thus implicates the
Fourth Amendment. An interview of a reported victim child by the

Director, without the consent of the child’s parents, constitutes a seizure of
the child within the meaning of the Fourth Amendment. This Fourth
Amendment right can be asserted by the child’s parents on behalf of the
child. (In Re Stumbo, 143 N.C.App. 375, 547 S.E.2d 451 (2001),
dissenting opinion, citations omitted).
The noninterference order envisioned by section 7B-303 is enforceable by
civil or criminal contempt. N.C.G.S. § 7B-303(f). Thus, once such an
order has been issued, a caregiver is faced with two options: (1) she can
consent to the requests of the director, or (2) she can assert her
constitutional right to freedom from impermissible searches and seizures
as a ‘lawful excuse’ for noncompliance and risk contempt of court. Such a
statutory scheme necessarily implicates the Fourth Amendment to the
United Stats Constitution and the parallel guarantees for Article I, Section
20 of the North Carolina Constitution. (In Re Stumbo, 357 N.C. 279, 582
S.E.2d 255 (2003), concurring opinion).
North Carolina is not the only jurisdiction that has found Fourth Amendment
implications connected to the investigation of child abuse/neglect cases. The Seventh
Circuit Court of Appeals held that it was unconstitutional when Child Welfare employees
interviewed a minor child at a private school “without a warrant or court order, probable
cause, consent or exigent circumstances.” Doe v. Heck, 327 F.3d 492 (7th Cir. 2003).
In fact, the concurring opinion in the NC Supreme Court’s Stumbo opinion noted
that a number of federal and state courts that have “concluded, either explicitly or
implicitly, that constitutional implications apply to government officials who investigate
child abuse.”
For parent attorneys, the ramifications of this could be staggering. While
abuse/neglect cases are civil in nature, and governed by the rules of civil procedure, the
fact remains that social workers and the Department of Social Services are, in and of
themselves, government actors. “Judicial recognition that DSS and its employees are
government actors is simply an acknowledgement that “the Fourteenth Amendment, as
now applied to the States, protects the citizen against the State itself and all of its
creatures.” In Re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003), quoting West Virginia
Board of Education v. Barnette, 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct. 1178 (1943).
Since social workers and the Department are state actors, and the Fourth
Amendment is implicated by their status and the nature of their work, it would stand to
reason that motions to suppress and the use of the exclusionary rule should be used in
DSS court when social workers and investigators violate the rules of searches and
seizures in carrying out their duties.
This in turn means that parent attorneys should have a working familiarity with
the rules of search and seizure and the exclusionary rule.

.

Marina
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Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Jan 04, 2009 6:34 pm

The original link on this thread is not working.


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