Here we come Superior Court.....

Are you going through an investigation now? Tell your story and get feedback here.

Moderators: family_man, LindaJM

jackiew75
Posts: 189
Joined: Sat Jul 22, 2006 12:23 pm
Location: NH

Here we come Superior Court.....

Postby jackiew75 » Sun Apr 01, 2007 4:59 pm

So we have been going through the adjudication process since December. We "won" our children back at the preliminary hearing and my husband had supervised but unlimited visitation with them.
We have done all of the in home services with an organization that believes in our innocense. Court seemed smooth with the exception of listening to the detective testify.... Every word out of his mouth was just a rotten lie.....

So just when the petitioner (CPS) finished with their witnesses, our attorneys filed a motion to dismiss. We waited 5 days and found out last week that the judge, whom has been fair all along, DISMISSED the petitions against both of us! I cried long and hard.... After 15 months of this, there appeared to be an end in sight. That was short lived to say the very least.

Within 4 days, CPS filed an appeal, De Novo to the Superior Court. This is where I need help..... From my understanding, this process starts all over again because CPS is not happy with the current Judge's ruling..... Anyone give me a run down on what is happening here or what we should be preparing ourselves for.

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

Postby Marina » Sun Apr 01, 2007 7:32 pm

.
.
.
In Virginia, the lawyer for my friends case did a plea bargain or stipulation in the Juvenile Court, and there was no trial for the TPR. He said it was a strategy for not revealing information in the lower court, but saving it for the higher court, which is Circuit Court.

I told him I thought that new evidence could not be offered in the appeal. He said, NO, that only applies to the "Circuit Court of Appeals." "Circuit Court" is a "Court of Record" so in this "trial court" they start everything from the beginning, as if the court has never heard anything. So here new evidence, witnesses, etc. can be introduced.

So ask your lawyer how it works in your locality. It seems to me that this would be the place to use a "Constitutional Defense," (as described in links given on this website) and file motions for the Court to:

(1) Follow the Constitution
(2) Hear all the evidence
(3) Have a Trial by Jury

etc. including Confronting the Accuser.


*
*
*


According to Child Welfare Information Gateway, what to expect in an appeal depends on

the TYPE of appeal,
and also on the COURT ORGANIZATION of your particular locality.

Chapter 4
The Juvenile Court Process

http://www.childwelfare.gov/pubs/userma ... erfour.cfm

Appeals

Parents and CPS have the right to appeal some decisions of the juvenile court in child abuse and neglect and TPR cases. At the very least, the right to appeal attaches at the conclusion of any

adjudication,
disposition,
or TPR trial.



Some States may allow appeal from other trial court orders or decisions, but generally, only final decisions are appealed or accepted for appellate review.

Appellate courts decide cases based on the written record, or a videotape in some locations, from the trial court. They examine the record and determine whether:

The trial judge abused his or her discretion in finding the facts;

The facts support the judge's conclusions of the law;

The judge correctly applied the law to the facts.

.
.
.

User avatar
good dad
Site Admin
Posts: 1589
Joined: Mon Jan 17, 2005 1:11 am
Location: Minnesota

Postby good dad » Sun Apr 01, 2007 8:25 pm

In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review. Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it was a clear abuse of discretion. This is usually defined as a decision outside the bounds of reasonableness. On the other hand, the appellate court normally gives less deference to a lower court's decision on issues of law, and may reverse if it finds that the lower court applied the wrong legal standard.


In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review, for example, if the lower court resolved the case by granting a pre-trial motion to dismiss



In American Federal Civil (non-criminal) Law courts, new trial is governed by Federal Rules of Civil Procedure Rule 59. Motions for new trial are made after the fact-finder has returned a verdict. New trials are granted upon motion of a party to the suit, guided by the standards of "manifest miscarriage of justice" and "clear weight of the evidence"


http://en.wikipedia.org/wiki/Trial_de_novo

http://en.wikipedia.org/wiki/Appeal

I only had a couple minutes to post, hope the links help ya' understand it better[/quote]
*********************
My advice is my opinion and not legal advice
*********************
A bad lawyer is worse then no lawyer and bad advice is worse then no advice....

jackiew75
Posts: 189
Joined: Sat Jul 22, 2006 12:23 pm
Location: NH

Postby jackiew75 » Mon Apr 02, 2007 4:16 am

So is my understanding correct that this "automatically" goes to the Superior Court or is this something that a judge must review and then decide whether it is worthy of a De Novo hearing?

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

Postby Marina » Mon Apr 02, 2007 4:20 am

Jackie,

When you find out, let us know whether you are going into a

trial court of record

or

an appelate court.

User avatar
Frustrated
Posts: 3916
Joined: Fri Aug 26, 2005 11:15 am
Location: Canada
Contact:

Postby Frustrated » Mon Apr 02, 2007 7:55 am

You can check the California Case on how they won the case against CPS. It may not be the same as yours, but use that as an example.

Usually Superior Court or Appeal Courts don't go against another Judge in lower courts. BUT if CPS has proof that this Judge has wronged them, then it will change the minds of the Judges and overturn the decision.
But most likely the CPS are grasping at straws and would file hoping they will win the Case.

They just hated to lose and you won.
DISMISSED CASE is hard to over turn unless they have evidence or proof that this Judge has abused his or her powers.
The CPS can file all they want, the end result is this:

You are DISMISSED of its Case.
I hope you will win again in Appeals Process.
Just what I have seen in many, many Court Procedures in Supreme Courts, they usually don't go against the Judges' decisions in lower courts.
It is easy to steal from poor people. But don't do it. And don't take advantage of those poor people in court. The Lord is on their side. He supports them and he will take things away from any person that takes from them.~ Proverbs 22:22


Return to “CPS Investigations”

Who is online

Users browsing this forum: No registered users and 25 guests