Santosky v Kramer

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billdean
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Santosky v Kramer

Postby billdean » Fri Oct 12, 2007 8:33 pm

Can anyone tell me how this US SUPREME court doument would apply to a child abuse case just starting out? Or does it apply only to parental rights termination?

Marina
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Postby Marina » Sat Oct 13, 2007 5:29 am

.

On a practical level, a parent needs to ask for appropriate services each step of the way and document it. Or have the lawyer ask for services.

If some services are not available in a particular locality, then make this an issue.

If there is no public housing, public transportation, jobs, etc, then this means that certain services are not available. In these cases the Agency will not assess a NEED for these services when in fact people do really need them.

But they will always have mental health services because these come with entitlement funding. The barrier to these services is if the parent does not admit they have a problem then the Agency will not authorize court-ordered funding for it, so the parent must pay out of pocket or not receive services. In Virginia a court recently ruled that the Agency must make court-ordered services available regardless of denial or admission of the problem.

In a Termination of Parental Rights hearing a parent usually only needs to be deficient in one area, not all. So if a parent has a substance abuse problem the Agency doesn't care if there is housing available because the substance abuse alone will result in TPR if not treated.

Same with jobs. If a parent doesn't get a job and have financial stability, then affordable housing or public transportation is not an issue. The joblessness alone will result in TPR.

Ask for services for assessed needs. If the Agency hasn't assessed a need, then document that there is a need and a request for services.

There is entitlement funding for mental health services, but most of the time not for tangible goods and services.

Their logic is that if you are sober, drug-free, and mentally healthy then you can get a good job, make enough money, have adequate housing, transportation, food, clothing, etc and be a good parent.

Mental health equals wealth.

Of course there is no evidence that this is true.

.

billdean
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Santosky v Kramer

Postby billdean » Sat Oct 13, 2007 5:51 am

Marina,
I don't see how what you have said applies to Santosky v Kramer?

Marina
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Postby Marina » Sat Oct 13, 2007 10:21 am

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http://www.law.cornell.edu/supct/html/h ... 45_ZO.html

"At the factfinding hearing, the State must establish, among other things, that, for more than a year after the child entered state custody, the agency "made diligent efforts to encourage and strengthen the parental relationship."

"After deciding that the agency had made "‘diligent efforts' to encourage and strengthen the parental relationship," he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children.

"The State's interest in finding the child an alternative permanent home arises only "when it is clear that the natural parent cannot or will not provide a normal family home for the child." Soc.Serv.Law § 384-b.1.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home."

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.
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In a Termination of Parental Rights trial, the state must prove that the parents cannot have responsibility of the children despite reasonable efforts by the Agency to help. If the Agency did not make reasonable efforts to help, then that weakens their case.

But, if the parents didn't ask for help when it was needed, or didn't accept the help that was offered, then the Agency can't be blamed.

Then that amounts to "clear and convincing evidence" that the parents failed to correct the problems.

Due process involves the Agency helping, but the parent also taking responsibility.

.

Momoffor
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Postby Momoffor » Sat Oct 13, 2007 10:48 am

The case that you are referring to is about termination or rights and the parents arguing that they did not get due process due to the

"Petitioners now contend, and the Court today holds, that they were denied due process of law, not because of a general inadequacy of procedural protections, but simply because the finding of permanent neglect was made on the basis of a preponderance of the evidence adduced at the termination hearing".

And also it is aruged that CPS removed 3 older children from the home, stated that they were in danger, wanted to terminate parental rights to those children because the family didnt try to remedy the situation, YET, in the eyars between, the family had 2 more children, that CPS was not worried about nor did they attempt to remove these other 2 children.

Furthermore, it states in the case file that in New York at the time, in order to terminate rights, all that was needed was fair preponderance of the evidence. Not Clear and convincing evidence.

Here is a breakdown of the case :http://www.kylewood.com/familylaw/santosky.htm

They argued that "The Santoskys contended this standard was so low as to deprive them of a fundamental right without due process of law" in order to terminate their parental rights.

The whole case revolves around the parental rights being terminated, and the standards used for termination of parental rights, so I dont understand how or why you could use it for a case that doesnt involve termination of parental rights.

It would apply to a case that is SIMIULAR in nature, which as far as I know they arent moving to terminate your parental rights

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Postby Momoffor » Sat Oct 13, 2007 10:50 am

I guess I should ask this ...

How do you think that case is simular enough in nature to yours?

What would your arguement be?

billdean
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Postby billdean » Sat Oct 13, 2007 1:19 pm

Greegor, has stated in the Newcomers part of this forum under the topic scared I am just trying to understand his position on this. Isn't he saying every single court action. It does not sound as if he is refering to termination or parental rights but my and your rights as cover by the 14 admendment.

"It is SO RARE that a Family Law defense attorney
files US Santosky v Kramer (derivatives) and obtains
"Clear and Convincing" (80%) as the court burden of proof
rather than the usual "Preponderance" (51%) that
most public defenders have never even HEARD OF IT! "

This should be filed in EVERY SINGLE court action
in all but two or three states.

Did YOUR attorney file to obtain the
Clear and Convincing burden of proof?

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Greegor
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Postby Greegor » Sat Oct 13, 2007 3:44 pm

MomOfFour:

US Santosky v. Kramer WAS about a TPR, but if you
ask an attorney to "shepardize" it you will find that
it does not apply ONLY to TPR.

Some PRO-CPS people have presented this argument
before that US Santosky v Kramer ONLY applies to TPR.
It's a false argument intended to mislead people.

In fact, in Iowa (and most other states) the
state caselaw derivatives also make the broader
implications quite clear.

But just on the face of it consider this:

If the higher standard would be applied ONLY
to the TPR process, then you could EXCLUDE
every bit of process from before that where
the lower standard was used.

What good does it do to build a castle
to exacting standards if it's on a swamp?

A TPR process to high standards but built
on a series of processes that were NOT
up to the higher standards?

US Santosky v. Kramer establishes the higher standard
for EVERY court process in Juvenile Court.

Remember the removal, adjudication and every
little process is a threat to your LIBERTY INTERESTS.

The comment that US Santosky v Kramer applies
to TPR only is bad information.

My attorney DID confirm that in Iowa there is
a LOT of Iowa caselaw reflecting it and that it actually
IS contrlling caselaw, for EVERY Juvenile Court process
about a child.

Attorneys do what is called "shepardizing" to
analyze stuff like this.

The right to parent LIBERTY INTEREST was called
"sacred" by one judge. ANY process which threatens
that is to be under the higher standard.

My biggest complaint is that the state laws actually
deprive families of this constitutional protection
in a ROUTINE bureaucratic fashion.

State legislatures set the bar low so the morons
from CPS could "make cases" that they should not.

People going into Juvenile Courts actually have
to have their attorney PRESENT the US Santosky
v Kramer and derivatives in order to OBTAIN that
BURDEN OF PROOF which really should be automatic.

Momoffor
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Postby Momoffor » Sat Oct 13, 2007 8:34 pm

with clear and convincing evidence .....Based off of Billdeans posts.

He admitted that he hit his son with a belt ....He admitted there were marks left ...

The child went to someone about this and weather they took pictures or not I do not know but knowing CPS they did.

They already have clear and convincing evidence not just a preponderance of evidence that he did indeed hit this child with an object (and depeding on the state statues ...once again in the state of VA you can spank your child with open palm only, nothing else, and as long as you dont leave a mark....anything else and its abuse)

Depending on the STATE where BILLDEAN lives and what they determine to be abuse would be the factor weather this case would apply or not. For the differences between abuse and not abuse.

I dont know how much more 'clear and convincing' evidence you need. He admits it himself. AND the child had marks on him. '

Not only that ...

Weather the case that you refer to ...is based off of TPR ..you dont seem to think this matters ...BUT in the case files, the parents aruged that there was not clear and convincing evidence to terminate their rights ....NOT clear and convincing evidence of abuse ...the abuse was pretty clear and evident as far as I could read .... If you read the footnotes ....

One of the determining factors in the decision of this case was the fact that CPS left 2 other younger children in the parents care, yet moved to terminate parental rights on the other 3 stating that they made no efforts to unite with their children.

Tio say that pro-cps argue that this is only for TPR is obsurd.

This is an arguement between CLEAR and CONVINCING EVIDENCE, and PREPONDERANCE of evidence.

Preponderance of evidence - Greater weight of evidence, or evidence that is more credible and convincing. Refers to the amount of proof required to win a civil case

Clear and convincing Evidence - The level of proof sometimes required in a civil case for the plaintiff to prevail. It means the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard but less than beyond a reasonable doubt.

The fact still remains, the child had marks on him and Billdean admits to doing it. That dear sir is pretty damn clear and convincing. He has been left holding the smoking gun.

The case you refer to is used to show that CPS did not show clear and convincing evidence that the children should not be returned to them, and that the state held the standards too low, so that no matter what, the state could move to TPR based on such low standards.

But if Billdean so chooses, by all means try it. Nothing hurts and the worst that can happen is they say no.

I am not a lawyer...just going to school to be one ...so nothing I say should be used as legal advice.

My honest opinion on this case based on what I read and what the kids went through ...those parents should not have gotten thos kids back ..but CPS screwed up by leaving the other 2 in the home and thats what truely shot them in the foot.

And I truely hope that I am not confusing Billdean with someone else.
Last edited by Momoffor on Sat Oct 13, 2007 8:50 pm, edited 1 time in total.

Momoffor
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Postby Momoffor » Sat Oct 13, 2007 8:41 pm

Taken From : http://www.legal-explanations.com/defin ... ardize.htm

Shepardize
(n) Shepardize is the process by which decision of the appeals court in previous similar cases published in Shepardiz'e Citations is located to be cited in the case

http://www.law.arizona.edu/Depts/Clinics/CAC/fed.html

Santosky v. Kramer, 455 U.S. 745 The Court held that the minimum standard of proof in termination of parental rights cases is clear and convincing evidence. The Court noted that the fundamental liberty interest of parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents.

billdean
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Postby billdean » Sun Oct 14, 2007 7:33 am

Momoffor

I don't think it is necessary to exploit anyone case on here or to discuss someone case that you do not have all the facts on, or have possiblty miss read the facts. At least for myself, I speak in general terms and do not discuss all the facts here on this site. It is true I said he got a spanking. The how, when, and where is another matter. You are assuming the mark left were the result of the spanking so you have drawn a conclusion that I am guilty. I hope anyone on this board never has you in their jury or as council.
The only reason this was brought up, was to have some discussion on how it might help all of us not just me and my case.
I have been told by one of the top Abuse attorneys in the country that Santosky v Kramer has some merit as Greegor has suggested.
I would hope that we the accused would look at such case and try to decide how they could be helpful in all of our dealing with CPS. Is this not the greater fight? We all feel we have been falsely accused. On this alone my case is no better nor no worse than yours. We are here for the same reason just different facts. Lets help each other not judge one another.

debbiescalese
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Postby debbiescalese » Sun Oct 14, 2007 8:45 am

billdean, Bottom line is this ... Even if you broke the kids leg in a fit of rage cps is suppose to offer you help to get your child back. If they do not make reasonable efforts and do not allow you due process you have the right to appeal stating they did not follow the law and give you oppertunity to change. Now if they make reasonable effort and you do not follow through with services than that is on you.

My husband from my first marriage had a daughter who got into a fight with her boyfriend they played tug of war with the baby causing bruised ribs and a sprial fracture of the leg. This baby was 4 months when this occured. By the time this kids was a year the mom compleated all the "hoops" she had to jump through and got the kid back. Now say she did not jump the hoops she would not have gotten the kid back cps could have claimed she had a chance to change and did not thus they could rightly file for a TPR. Since she did as told she got the kid back.

Does that help??

billdean
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Postby billdean » Sun Oct 14, 2007 9:27 am

debbiescalese

First off thank you for your reply.

I understand what you are saying. The bottom line as I see it is that in some case the preponderance of evidence is used immediately to take the child away from the parent claiming a child in need. The court seems to away err on the side of the child. When and if they would have used the standard of clear and convincing evidences from the word go not so many children would be taken away. As Greegor has suggested this would make CPS more accountable for their actions and unable to take children from the families for mere hear say. I agree that if a child has broken bone, bruising or other questionable marks that would be clear and convincing evidences if it would be tied to the parents doing. I all so agree the state has to make reasonable efforts to unite the child with the parent. I don't believe CPS has the right to take a kid from their home for a runny noise, dirty dishes, false statements from the child, or any other chicken ---- reason they can dream up. There for I was asking for discussion on Santosky v. Kramer. Not how it applies to my case but if it can be used on any abuse allegation that finds its way to court.

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Frustrated
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Postby Frustrated » Sun Oct 14, 2007 12:46 pm

It seems that CPS avoid the word "interferance" into family life, but use "Best Interests of the child" in Court, and they are using it ever since. Most Families Lawyers would argue about the "best interests of the child" to be returned to the Parent, but CPS would argue that it is the best interests that he or she remain in State's Custody. It is ironic that they ignore the evidence in court but will admit the hearsay statements in court even though if the worker had lied thru her teeth, and the fact that the court/and the Judge allows that to happen. If you notice on another website called www.canadacourtwatch.com you will notice that there are several workers being caught for lying in Court and our very own Judge are in fact abusing the system by "altering" transcripts. Nova Scotia Children's Aid Society is under major review investigation because they were caught fabrictating their reports and abusing the funds, and now Toronto's Children's Aid Society is also under review so is Kingston's Children's Aid. Saskatchewan's Children's Aid is also under review as it seems to be an epidemic of falsifying records in Court. But the fact they are now being caught with their pants down and now being formally charged for it "criminally".

It is about time I'd say. :wink:
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

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Postby Momoffor » Sun Oct 14, 2007 2:03 pm

I did post that if I hoped I hadnt confussed you with someone else.

It is true that we dont know all the facts to your case, I was using the information that YOU provided in your previous posts.

Noone is exploiting anyone. Once again, I was using the infomation in your previous posts.

Also like I stated in my post without knowing your states laws for CPS cases its difficult to know if it would be applicable or not.

If you had already spoken to one of the top abuse attoneys in the country ...then why come here and ask the hows and whys ...Why didnt you ask the attoney who could have explained all of that to you.

I am not picking on you in the least .....I am attempting to help you. Nothing with CPS is cut and dry, nothing holds any logic at all that they say and do. In my case they charged me with neglect using statues that no longer exisisted and hadnt for a number of years. When this was used by my lawyer against them, they changed the statue that I was guilty of on the spot in the middle of the appeal 'trial'. The investigators excuse that was accepted? "I dont pay attention I just copy and paste everything." And it was accepted as ok!!!!!!!!!!!!!!! (must be because she is overworked...><)

There is a difference between abuse and dicipline. According to your previous posts you were diciplining your son. Unfortunatly, because of billary clintons lovely system, any type of dicipline is now considered abuse. My parents used to tan our hides when we did wrong. We all grew up, no one did drugs, we all have college educations, and none of us have been in trouble with the law a day in our lives.

Kids these days who are being raise by the 'it takes a village (government) to raise a child philosophy are addicted to drugs, on the streets, killing people, and doing whatever the hell they please and there isnt a damn thing parents can do about it ......

So do I think you are guilty as you assume that I do? I dont know that ...thats between you and your son. Based on the information that was provided, no I dont. But in CPS eyes you are ...

Good luck with your case.

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katgotsteve
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Postby katgotsteve » Sun Oct 14, 2007 6:07 pm

In my opinion, the main problem with any defense is trying to run through all the federal, state and county regulation. i think that federal laws should trump state laws, but then they all get murky when each county office have their own regulations. i talked to a few caseworker during this past year and the ones who are really listening and helping, yes there are a few, seem to get replaced or burnt out fast. i was told by a supervisor prior to investigation/life ripped to hell that when a supervisor gets in there and really wants to change, they get replaced fast. it is true, i have read articles about in my state alone.
the fact is there are people who abuse children, but not all parents are abusers, not all foster parents are abusers, not all people who work for cps are abusers, but the few that there are make it hard on all the honest people out there. you have an organization who is know to be corrupt and who has made no effort to change and what little change has taken place has been forced on them by courts and they still have not stipulated to those few changes. lets face it when congress writes these child protection laws, they leave so many loopholes that 10 elephants can jump through them. what we need are clean cut regulations for them to follow. we need honest experts who are willing to just make things fit in place to a theory, but form a theory from facts. there are just too many theories on things like shaken baby syndrome and child sexual abuse that they leave no room for truth. we live in a world of forensics, where they can find a drop of blood the size of a pin head and convict a person, but when a child/teenager is raped there are not traces, no marks, really makes you think.

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Greegor
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Postby Greegor » Sun Oct 14, 2007 9:40 pm

The US Santosky v Kramer and descendant case law
is about the level of BURDEN OF PROOF.

If you think they will see you as guilty and raising
their burden of proof won't help you then consider this.

Usually their attack is NOT based only on one thing,
but a collection of issues.

If they launch a 4 prong attack and you figure
they OWN you for one issue, the higher standard
may prevent them from getting you for
two or three of the other ""issues"".

Most families actually don't depend on EITHER
standard for adjudication, as in the bulk of
Juvenile court cases the family is talked into
STIPULATING. (by their OWN attorney!)

I have said for years that even if a person is
GUILTY of a child abuse, that they should go
to a full blown adjudication hearing at LENGTH.
This helps prevent the effect where they OWN you and
load up whole bunches of services without any basis
and presume you guilty of various OTHER
accusations made initially.

Going to adjudication could be good to
prevent a LOADED UP service plan containing
items with NO BASIS.

If BillDean is accused of crossing the line from
legal spanking into illegal spanking, then a full
blown adjudication battle AT LENGTH might be
in order. Forcing CPS to prove he crossed that
line under the HIGHER burden of proof would
tend to help wouldn't it?

Perhaps in one of those rare horror story cases
accepting guilt without a fight might be good,
but if you're going to fight in court, why wouldn't
you want the percentages for burden of proof
running 29% more in your favor?

debbiescalese
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Postby debbiescalese » Mon Oct 15, 2007 3:22 am

billdean, Your post back to me just stated the problem in a nut shell. This case only has to do with TPR not just plain removals. I don't think it can be stretched to just plain removals. With removals themself there just has to be eminant danger. If they have bruises on a complaining child that is enough. They can argue you "beat" the child once who is to say next time won't be worse. Maybe you could appeal the removal itself until it get to the federal level and then there would be a case consering that. You have a point they do remove some kids too fast and yet some kids they wait way too long. It is all up to chance and it shouldn't be. The whole problem with the system is there is no consistancy. For what they removed your child for they may not remove another and just offer intensive family preservation or no services at all. It only depends on the worker, supervisor, and the state. It really has very little to do with the child or family itself. That is what makes all this screwed up!

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Postby Marina » Mon Oct 15, 2007 6:19 am

.

Most of the time these cases aren't about guilt or innocence after the first day, but about "Needs" of the family. It is not all that hard to prove "needs" by clear and convincing evidence.

And when it comes time for the Termination of Parental rights trial, it is still not about guilt or innocence, but about "needs." Can the parents provide for the "needs" of the child?

Since laws limit the amount of time a child can spend in the System, then if the "needs" are not met in a given amount of time then the parents don't get the children back. The children "need" a permanent home, so have to be adopted, etc.

If the Agency has separated the parents, caused them to lose their jobs, which caused them to lose their home, then they end up "needing" more than they did in the first place.

It is not all that hard to then "prove" by clear and convincing evidence that there is not a 2-parent family, the mother doesn't have a job, and is living with relatives, is in denial about the ex-husband's guilt, etc.

In the pretrial stage, court rules require the lawyers to go over all the points and "stipulate" or agree on whatever points they can before they come into court, so as not to waste the court's time. This means that all the information on the case is supposed to be made available to all parties beforehand. This is to prevent trial by ambush.

So the lawyers get together and look at the "counseling" documentation and decide to both accept it. End of discussion.

Then they talk about the job situation. Is the parent working, how much do they make? End of discussion.

What is the housing situation? No public housing available in that locality, voucher waiting list is closed for 9 more months. End of discussion.

Etc.

Ooops. Time's up. Lost your kid.

At least if a parents represents themselves then they can present evidence at the trial - trial by ambush - although there may be objections.

And if the parents represents themselves, then they can have a lengthy trial and go over each and every detail about name, address, and phone number, dates, places, qualifications, case notes, hearsay, etc.

And parents can question the witnesses adequately if they have done their homework.

But most people don't feel qualified to do this, and it is obviously very risky.

.


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