Anyone??

[pamom2crew]

Anyone with any true knowledge or ideas please respond!

I have a friend who CPS became involved with, due to of course false allegations.
She did guardianship papers, which did not work. (which I told her they may not work)
Well CPS took her to court and told her to turn over her child, she refused, she is now in jail for 180 days or until she turns over her daughter.
I am looking for case laws or information on what her possible options will be after the 180 days are up.
Can the judge re-sentence her to more time if she does not turn her daughter over? What will CPS do?
I have never been in that situation so I have no personal experience with it.
Thanx to anyone who can help.

[Greegor]

Gutsy woman.
What KIND of false accusations?

Has she asked for a JURY trial?
She should ask for that.

NOT a "speedy trial" that is just a bench trial.
Would a JURY see it her way?

I am NOT an attorney.

[good dad]

I am looking for case laws or information on what her possible options will be after the 180 days are up.
Can the judge re-sentence her to more time if she does not turn her daughter over?

In a "Contempt of Court" charge (google search it), I'm pretty sure he can leave her in till she produces the child

[Greegor]

If she asks for a JURY trial don't they have to give her one?

[good dad]

“Indirect contempt of court” occurs outside the immediate presence of the court and involves the violation of a court order. It may be either civil, or criminal.

A charge of "Criminal Indirect Contempt of Court" is a criminal charge. Defendants charged in this manner are afforded all the usual privileges of other criminal defendants, like the right to a trial by jury, to examine, and to call, witnesses, and to testify on one's own behalf.

Civil contempt is not a criminal charge. Civil contempt is a show of force. When discussing civil contempt, commentators often use the phrase "the contemnor has the key to the cell in his own pocket". The meaning is that the contemnor is being required to perform some action. If the contemnor performs that action, he will be released, immediately, from whatever sanction the court has imposed.

[Frustrated]

She needs to get a Lawyer asap. If she has one, then the Lawyer can do the negiotating and make a deal. It all depends on the allegations and what the case is about.

Were there Criminal Charges of any Abuse? Any proof? Did she write Declaration of Facts to the Judge?

If she did no wrong doing, she is one strong lady. If there was nothing wrong and she had done nothing wrong with her Children. Any real Parent would protect their Child/ren at all costs, if it would cost the Price of Jail. She chose that path. All she needs to prove that she had done nothing wrong and she needs evidence of it and enter into Affavidat and Declaration of Facts entered in Court.

Was there a Warrant to Seize this said "Child"? Consitutional Right under Seize and Seizure Clause, where they are supposed to have a Warrant for the Child and put into State's Custody. Was there a Custody Order?

No Warrant, No Custody, they have no Right to hold her. Bring those issues with a Judge. She can use the Constitutional Right Admendment was that 4 or 14th? Can't seem to remember. The one with Warrant Right to Seizure and Search...etc...etc....

[sqstroublemaker]

There was no warrant but CPS or DSS wanted to interview the child alone with no one else present and the mother said no. DSS than decided that she was interfereing with their investigation so they took it to court. Our location has many many rubber stamp judges that see it as anything DSS says is true. They did not even swear in the case worker at the hearing and the woman LIED through her teeth. When the mother presented evidence to prove that the caseworker was lying, the judge would not even look at the evidence. The first thing that I felt was wrong doing on their part is that when the mother requested legal counsel, three times, the judge denied her immediate counsel and stated that after the hearing she would decide whether or not the mother was eligable. Can this be done? I thought that our constitutional rights gave us the right to legal counsel under our 14th ammendment, "No State shall make or enforce any law which shall abridge the privileges or 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."? And as for not allowing our daughter to be interviewed in private by two people any of us had ever seen, is that not a breach of our 4th amendment rights "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."? Do we no longer have rights as American Citizens?

[sqstroublemaker]

I am sorry, I was mistaken about the fourth amendment. It is actually the 6th. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

[Greegor]

Yup, commonly these Family/Juvenile courts will even
go directly and deliberately against the US Constitution.

I think of it as being like that "shell game" where
they put one dried pea under one of three walnut shells.

They figure that since most people don't know
what their rights really are, they don't even
have to worry about giving them to you up front.

Citizens have more rights in these cases than
the Juvenile Court Judges or the agency thinks.

Many Public Pretenders will not file for all of the
various appealable issues in the lower courts.
Some will strongly resist requests for this from
their PD clients. A few will actually do as asked.
Lots of them will WITHDRAW the minute they
think you're going to make them actually WORK.

This means you can't bring them up on appeal.

There are a LOT of issues that would totally
reverse cases *IF* anybody just brought them
to a higher court. Some issues would even be
glossed over by the State Appeals or State
Supreme court, but the Federal Courts would
have a COW over them. A few would not
excite a Federal District Court but would set off
alarm bells in the US Supreme Court.

While a person could argue about how GREAT
this is, IN PRACTICE it means that most people
get a shabby version of justice, and can only
go after HIGHER APPEALS if they have lots
of MONEY or are extremely determined and patient.

The small number of appeals is more of a reflection
of people giving up for lack of lawyer money
or sheer EXHAUSTION rather than a reflection
of whether or not the cases have appealable issues.

Some states have moved up appeal deadlines
to be rediculously short for Family Court cases,
yet another snare to snub families.

Even the usually JADED attorneys gripe about
that one because it forces Public Pretenders
to actually go through the motions VERY quickly.

It's much easier for them to just not mention
the option of appeal, or for them to discourage it.

Of course people who can afford the "dream team"
fare much better, but CPS tends to avoid them.

[good dad]

I was mistaken about the fourth amendment. It is actually the 6th. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,........

CPS/DSS doesn't file criminal charges and doesn't appear in criminal court, so a persons 6th amendment rights are side-stepped.

It's all in the way it's worded..

[Greegor]

But can a Judge put a person in jail without a criminal charge?
Don't most states laws say that people can't languish
in jail without a criminal charge or a jury trial?

[Frustrated]

Exactly. She needs to find out if there is a Show Cause for holding her in Jail if there are no Criminal Charge pending. You cannot hold a person based on no Criminal reasons. If there was no Warrant, no Custody Orders, there is no reason to hold her in Jail whatsover.

If it is in Civil Court, then I feel they have no basis to hold her in Jail because to put a Person in Jail has to be held in Criminal Courts. That is my opinion so I am not sure if this Case is in Criminal Court or Family Court?

Did she get charged for Kidnapping? Find out. If there are no Charges, there is NO REASON TO HOLD HER IN JAIL. Find out if there are ANY Criminal Charges, otherwise, they only can hold you in Jail for so long, up to 24 hours. But 180 Days? I would think that is a violation to her Rights. There is a Law when how long they can hold you in Jail for how long? That's what we need to find out. The only way to put a Person in Jail is BY CRIMINAL CHARGES.

No Criminal Charges? She is free to go. Why hold her in there for? IF there are NO Criminal Charges? Find that out.

She needs to get a Lawyer to get her out.

[DontBiteMyNose]

Wow! If she is that ballsy, I would really smile if she citizen arrests the judge when she is released. In some states, citizens can file a private warrant for arrest.

[fightingfor3]

If you have any communication with her tell her to start writing her own affidavit NOW and start including all of the violations. Get her a pen and paper that's all she needs. She can file a complaint against them for violating her rights. She can file an injuction for relief, and she can start writing to the governor and to newspapers. If he sentenced her for contempt or obstruction or whatever she can APPEAL. But she has to do it immediately. Good for her! She did the right thing and you are a good friend/husband to offer her support! Tell her not to give up hope or to give in.

Anything they make her sign in jail make sure she writes UNDER DURESS ALL RIGHTS RESERVED over her signature and if she can't write that UD will sufice. It can be scary and they can threaten to take everything but as long as she doesn't give in and agree to anything they will be digging their own grave and it will be so much easier for her to bury them. Yes, you are right, if CYFD took her to court they must provide her with an attorney if she unable to afford one. These all pertain to her:

In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and as a result these clauses have become known as the Miranda rights.

Fifth: forbids punishment without due process of law

Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment.

Ninth Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the people have other rights not specifically mentioned, but rather retained elsewhere by the people
(WHICH WOULD INCLUDE THE RIGHT TO PARENT)

Fourteenth Amendment (1868): Defines United States citizenship; prohibits states from abridging citizens' privileges or immunities and rights to due process and the equal protection of the law

As husband and friend, there are two of you right? Don't defend her unless it is on record. Don't sign anything or agree to anything. Don't talk to these people and tape and document everything! Pair up and be witnesses as much as you can for her and for eachother. If she requested an attorney on the record and the judge denied her on record she/someone needs to get the court tapes, not the transcripts because those are often inaccurate. You two cover your butts at this point. Don't do anything freakishly illegal like running out of the country or anything. Cause then you will be targeted and arrested and give them REASON and justification to do whatever is in their plan.

GOOD LUCK!! STAY STRONG!

[fightingfor3]

Also, look up your state's statutes regarding the children's codes. You can look here: http://www.childwelfare.gov/systemwide/laws_policies/search/index.cfm Double check these aren't always 100% accurate or updated.

Check this out too: http://www.familyrightsassociation.com/bin/CPS_violates_these_every_case.htm

Again you all are doing a great job so far! Remember the burden is on them; let them do the work! DO NOT GIVE THEM A CASE AGAINST YOU, so do not talk. Be polite though. BEING THROWN IN JAIL or FORCEBLY removing your children is better than allowing them to violate your rights or agreeing to anything because the fault is on THEM not you, and that's where you want it to stay. Force them to defend themselves and to be accountable.

[Marina]

Who has "legal custody" of the child now?

Was legal custody taken from both parents in court?

Whoever has "legal custody" has the right to "custody, care and control" of the child, including the right to determine where the child should live.

At the time of the request for an interview, the mother had parental rights to "control" the child.

If a social worker has "authority" to interview a child, and a natural parent has a natural right to "control" a child, and neither one will back down, then they take it to court.

The Parental Rights links that explain this concept would be helpful.

http://forum.fightcps.com/viewtopic.php?t=5008

Stanley v. Illinois, 1972

http://darkwing.uoregon.edu/~adoption/a ... leyvIL.htm

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “rights far more precious. . .than property rights.” “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.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, and the Ninth Amendment, Griswold v. Connecticut. . . .

[sqstroublemaker]

ff3, thank you for your words of encouragement. Marina, the mother has legal custody but has assigned guardianship to her sister out of state. Actually her brother, sister, AND mother, all of which are outside the state of NC. As for the progress of this case, my wife was thrown in jail for a contempt of court charge and failure to comply. This is a civil charge done through a civil court so the charges stand. They have violated several of my wifes civil rights and constitutional rights making this a case that can be thrown out on appeal. The problem is that my wife is sitting in jail until we can get the PD to file appeal. He is a real estate attorney. lol..... The hearing that got my wife thrown in jail was held and the PD that was assigned AFTER the last hearing against my wife's wishes, tryed to bring the things that my wife told him to the judge but the judge would not hear a word of it. All because the judge had assumed my wife was lying to him when she stated to him that she did NOT meet with him at Enterprise Rent-A-Car and he knows it was her. Sherry has an identicle twin sister who looks exactly like her. Her twin had moved out of state three weeks ago or so and that is when the judge stated that he talked to my wife at Enterprise. I guess the judge just could not believe that two people could look that much alike. I don't know but I plan to contact ACLU on Monday morning if I can find contact information for them. Can anyone help me find the number for contacting the ACLU in NC? Any help would be appreciated. CPS has taken our daughter from out of state and placed her in DSS custody until they hold a hearing in the state that they are in and see if they can or will expidite her to NC. Cross your fingers because I have pans in action to keep her out of "Foster Care" with complete strangers. Pray for my child that this works or she is going to be involved in a system that will inialate her and probably kill her. She has many many medical needs that cannot be met by just anybody.

[Dazeemay]

ACLU of North Carolina link

http://netmar.com/~acluofnc/

[Momoffor]

what are the allegations?

If the child was not even with the parent then proving that the child is in immediate danger is pretty damn hard to do without lying. The judge needs and should see this.

the social worker by law is supposed to prove that the child is in immediate danger when they request a removal order. What are their grounds that the child is in immediate danger when with out of state family members?

Refusing a lawyer MIGHT be within the law depending on the state. With CPS cases most of the time the only way you get a lawyer is if criminal charges have been filed. Or if TPR has been filed. And in most states, you only get a jury trial during criminal proceedings.

[Frustrated]

I am not sure, if there is a conflict of interest in having the Judge seeing a Defendent outside of the courthouse? Correct me if I am wrong a Judge should not preside over a Case if he has any connection to the Defendant like seeing her at the Rent a Car. That would taint the Case. A Judge was not even supposed to see the Defendant, even a Twin or whatever.

I would file a Motion to de-bench that Judge because of that "conflict of interest" in the Case where the Judge has had seen the Defendant during the Case or before or After, it does not matter. I would report the Judge to some KInd of Judicial Review to see if there is possible taint in the Case.

"I see The Defendant" should be irrevalant to the Case unless she had resorted to Kidnapping the Child out of State and the Judge has seen it.

Please correct me if I am wrong, because I am confused. lol She sits in Jail and refuse to hand over the Child correct? and some one is looking after her but now CPS has custody of the said Child into Custody and will extradite the Child back to the State. But why is the Wife still sitting in Jail if CPS already had custody of the Child?