Hope In The Federal Courts - Case Could Go To Supreme Court

[SilverFox]

I advise anyone who has a legitimate dispute with CPS to file a complaint in a Federal District Court. There is hope in Federal court. Read this excerpt from a dissenting opinion by a Federal judge in a recent case in Federal court. Follow the link. The fight against CPS has to be conducted in a federal court. Fighting them in state court is unlikely to be successful.

This link:
http://www.childlaw.us/archives/2005/03/

From the judge:
"The ramifications of the majority opinion in this case cannot be understated. A child may be taken away from a parent, in the best interests of the child and for reasons that have nothing to do with the unfitness of that parent. Conditions for return of the child can be ordered by the court, which simply cannot be met for reasons having nothing to do with the unfitness of the parent. At the expiration of one year, a parent may have his or her parental rights terminated absent any particularized showing of unfitness, simply because he or she cannot satisfy the conditions set by the trial court."

[Bob_Lynn]

Read this excerpt from a dissenting opinion by a Federal judge in a recent case in Federal court.

The ruling was made in the Supreme Court of Wisconsin. The dissenting opinion was that of one of the judges in the state court, not a federal judge.

In many cases, you may have to appeal a lower court ruling in the higher state court and exhaust your options there before proceeding to the federal level. There are many factors that govern what court you may want to take your case to.

Having said that, there are many examples of favorable rulings that have come from the state courts as well.

The point to remember is that any state court ruling has little or no influence in other states. There are rare situations where this is not true though. In federal court, a state court ruling may affect a federal decision when the source of the legal question is derived from that state's jurisdiction.

[SilverFox]

So? It is a favorable opinion in a state supreme court, even though it is the dissenting opinion.

Here is an interesting document.
http://www.childlaw.us/archives/documen ... amuels.pdf

For those who don't know:
State CPS agencies bring suit in state district court. Temporary orders can be issued by a state district court judge. If a respondent wants to appeal a temporary order they must file a petition for writ of mandamus with the appropriate state appeals court that has jurisdiction of the lower state district court. Either party to a judgement by a state appeals court can appeal a ruling to the state supreme court.

If due process has been denied in a state court, a party can petition for a writ of mandamus in a state appeals court.

But they should file a complaint instead in the federal district court. If due process was denied, and a judge finds this to be the case, the ruling in a state district court will be vacated, and the child returned to the parents.

[Bob_Lynn]

Sorry, I'm only clarifying the point. There is a huge difference between an opinion from a state court and one from a federal court. Also, a favorable opinion when it's a dissenting opinion is not usually helpful when the majority went the wrong way.

For example, you cannot successfully claim an 8th Amendment violation (cruel and unusual punishment) if it doesn't apply to a criminal case. This was decided by the Supreme Court in a case many years ago. The dissenting opinion by one of the Supreme Court justices (there were actually 2) was a beautiful piece of work but it's virtually useless as it has never been successfully challenged since.

[SilverFox]

Bob, you know a good deal about the legal system. What is the best approach in Federal court, if due process was denied. Specificall, no notice of custody hearing given to parents. Said hearing resulted in CPS getting temporary managing conservatorship and denying parents access to the child. All that would happen if appealled to a higher state court is the court would order a new hearing, and the state would get temporary conservatorship again, and of course, the clock would have to be rewound and start again.

I think a Federal lawsuit is in order, on the charge of denial of due process.

[Bob_Lynn]

Unfortunately, I know enough to be dangerous, I'm far from an expert so you have to take the advice I give you with a word of caution.

I believe that once you've exhausted your appeals to the state Supreme Court, you have the option to appeal to the federal Appeals Court only if you're appealing a federal question of law, such as a constitutional question. And if your appeal is successful, the case would be remanded to the lower (original) court.

Otherwise you would have to start a separate suit in federal court, but there you would sue for violation of your civil rights under color of law.

I would check with an attorney if I were you to make sure I'm correct on your first option.

[SilverFox]

You are right. You can sue in Federal court--an original suit against the county, state and individuals. Thanks!