Puzzled

[whosechildrenarethey]

My grandchildren were Sheltered in August of this year. Since then the Agency contracted to manage my daughters case have done many unethical things.

All three of the my grands are out of the home, two of them are with me and another one is with their aunt finally after a long battle to get them out of Foster Care. My daughter has managed to stand up under the Agency's unyeilding pressure to sign a Case Plan and goes to trial in a few months. She has recently been assigned a new Case Plan Manager who is dropping hints left and right to my daughter that the word inside her meetings is that the Agency is worried they will be sued for having had my daughters children vaccinated without her consent or knowledge. Her two older children have had Exemptions to Vaccines in place for a long time and the youngest, just 4 weeks old when seized and his mother had to stay an extra day at the hospital to meet with a DCF investigator because my daughter declined the Hep B Vaccination and nitrate in the eyes and would only allow oral Vitamin K to be administered rather than the injection.

I am puzzled as to why her CP Manger would want her to believe she has a lawsuit? What angle is she playing that I'm to close to the situtaion to see? Although the children are now placed with the family, they are stil under the protective custody of the State and it has been my understanding they can pretty much do as they please without recourse to parents.



While I agree my daughter may have grounds to sue for depravation of her civil rights regarding certain elements of her case, I can't understand why the CP Manager would want her to believe she has a potential lawsuit for having had her children vaccinated and for changing their appearence, (Foster Parent had her childs hair that was long cut short)...? WHAT AM I MISSING HERE?????

[Eljay]

My web search skills are lacking today, or maybe there's just nothing to find in the negative...

Basically, CPS can *NOT* make any medical decisions!!!!!!!! There are provisions in most states for CPS to take custody (and thus, control) when there are *LIFE THREATENING* medical issues and the parents are guilty of medical neglect. But even then it's not the caseworker's decision, nor the foster parent's decision to make those decisions. Decisions are made by a team which may include the parents, case/social worker, doctor(s), guardian ad litem, etc.

For them to vaccinate against your wishes would most certainly be overstepping of their scope of authority. Imagine they decided that a child should be circumcised or ears pierced just because the other kids are doing it???? Or a tattoo? Same with cutting of the hair, especially when it's a religious or personal choice.

Yes, you should talk to a lawyer about suing and scare the crap out of them. It's just not their job.

This case - Ferris - is from earlier this year (although in my head, it seems like it's a year or two old... maybe the incident is older).... but do some websearches on the family and HSLDA and see if you can find anything useful.
http://www.minotdailynews.com/page/blog ... wborn.html

[treytrey1]

My daughter had her ears pierced while in foster care and CW did nothing.

[whosechildrenarethey]

My daughters children we not removed for medical neglect. DCF most certainly knew of my daughters objection to vaccination's because they have a record of that in their own files. My daughter declining the Hep B vaccine at the birth of her infant just four weeks prior to their seizure of her children caused a record of her objection to vaccines to be in their own files. Also her older two kids have had a State approved Exemption with the health department long before the boys came into the protective custody of the State. When they took the kids, her two youngest children lived with her and her oldest child was living with me and has all of his life. He was not with his Mother or brothers when the alleged incident took place. We had had a temporary guardianship since 2007 renewed each year but our most current had expired in 2011. It wouldn't have mattered because they never asked to look at the guardianship stating only that if the judge didn't order it, it wasn't valid. They removed my grandson from me two days after removing the two youngest boys stating I had disqualifying factors. A little mess I got myself into from 40 years ago, and only the Judge could approve my grandsons placement with me. They seized him telling me if I didn't hand him over I would be handcuffed and arrested in front of him when clearly they saw and knew there was no imminent danger or exergent emergency and I think they did it for no other reason than to take jurisdiction and control over him and to obtain the federal funds. I was told they did it out of concern his mother would come and take him with her.

We have had to deal with DCF dragging their feet on everything, lying, falsifying records and doing whatever they want with the kids. While I was able to get my oldest grandson who has always lived with me back and eventually I did get another one of the kids transferred from foster care to me, it was not without it's intrusions. First thing they made me do was put my grandson in public school. We had to endure 8 weeks of weekly visits with full house inspection and closed door meetings with my grandson at each visit. Now they do the same thing with my 4 year old grandson ~ even the closed door meetings but at last we only must endure these intrusions once every 21 days now. I had homeschooled for three years and DCF said I had to place my grandson in public school for the public exposure. I don't get it since I am under no suspicion of abuse. I think it's all about control and nothing more and my grandson is not happy in public school. We had a beautiful life and in the blink of an eye it's turned into a nightmare.

Eljay I have researched as best I can in an attempt to find something in writing that details the scope of DCF's control over children placed into the protective custody of the state. I live in Florida and can't find anything, no Statutes, Codes, State or Federal Laws and so I can't get a handle on how I would go about suing DCF for overstepping their boundaries and to make it stop. Their falsifying documents was reported to the Inspector General and although the OIG contacted us to say they would investigate, nothing was done that I can see or tell. Although a new CP manager and supervisor were assigned. This isn't a personal injury lawsuit because we can't prove damages, and to sue at the State level seems moot because they have caps on damages and DCF workers seems to have immunity. Is this a lawsuit at the federal level? I don't know and we obviosuly aren't in the position to hire attorneys. Any damages to my grandsons based on receivng vaccines which in the case of my one grandson consisted of 10 different vaccines given all at the same visit, remain to be seen but we are overwhelmed that DCF could have this done without their mothers consent. What else have they had done to the children that we haven't found out about yet? My daughter was assigned a public defender who won't even as much as get her Sworn Declaration of Facts on the record for her. We'll have to do it ourselves, per your advice we are attempting to time it just right. My family is mentally and emotionally exhausted and yet I know we can't give up the fight. I'm just at a lose of how to pick up the ball and run with it. Thank you for your insight. You are appreciated more than I can say and this site is one of a kind and desperately needed.

[Eljay]

Find your state statutes here:
http://www.childwelfare.gov/systemwide/ ... ies/state/ (select FL, then the category you want)

or
http://www.meritcd.com/childabuse/abuse ... p?state=FL

or your official state source:
http://www.flsenate.gov/Laws/Statutes/2 ... pter39/All

and the CPS website:
http://www.myflfamilies.com/service-pro ... ld-welfare

and if you want to look at FL CPS in the news:
http://www.legallykidnapped.blogspot.co ... el/florida

[Eljay]

What was this "alleged incident" and/or what is CPS claiming she did?

[whosechildrenarethey]

The Petition states in the first paragraph that Mom was found passed out at a shelter with two of her children present and that CPI attempted to wake Mom with no success so EMS was called. The second paragraph states, Mom was incoherent and groggy. The Petition goes on to explain that when Mom was removed by EMS a bottle of pain mediation was found. My daughter and her children had been living with me and we had a disagreement about some things so she moved into a Shelter. The night she moved in is the night the incident happened. Not satisfied with the abuse allegations alone, CPS went on to throw neglect and abandonment at her too. My oldest grandson lives with me and two days later they came to my house and seized him without a court order and with the help of 4 sheriff's deputies who told me if I didn't hand him over they would hand cuff and arrest me and then take him despite my having an informal guardianship.

The part CPI left out of the Petition is that the medication they found was prescribed to Mom for her legitimate medical need to manage her post surgery pain. They also admit they made no reasonable efforts to maintain the children outside of Foster Care stating Mom's (alleged) substance misuse and that there was no relative known and or available, all lies. I have a real problem with the stretch CPI makes from found groggy to substance misuse history. Mom doesn't have a history of substance misuse nor does she have any founded or confirmed issues with CPS.

We were supposed to go to trial this month and Mom's court appointed Attorney stipulated to a continuance asked for by CPS Attorney so the case is continued till next month. In the mean time, the court appointed Attorney is calling Mom with settlement offers that are nothing more than CPS's attempt at getting her to sign the case plan rather than have a trial. Mom understands doing so would be the same as her admitting to the allegations. It would be as good as a conviction at trial and it would take away any hope she may have of an appeal should this go badly at trial and or at TPR should CPS choose to take it there. This experience is wearing on all of us, including the children and we would like to have our day in court. I can't even imagine what we can expect at the Pre Trial. I hardly see the need for one since there are no experts to put on the stand to testify against Mom because she has not signed nor has she complied with the case plan.

[Eljay]

Is it possible that in the state your daughter was in (being pissed enough with you to "go homeless" for the night), she denied that you were safe/available for the kids? Maybe she doesn't want to admit it and/or was ashamed/embarrassed/prideful at the moment. Not that it matters, since the kids are with kin now, but that's where my intuition takes me.

Just to play devil's advocate, just because a person has a legit prescription, does not mean they are following doctor's orders. Some abusers get 2, 3, or more "legit" prescriptions for medications. I'm NOT saying your daughter did this, but since she can't prove that she did NOT do that, CPS is going to assume the worst. Now, if they took a count of the Rx that night and compared it with the Rx date (as any good investigator would do) then she can at least prove she wasn't abusing THAT prescription. CPS would have to pull up other. Anyhow.... the problem is that CPS is asserting that being groggy equals substance abuse. The problem is that unless someone OBJECTS to that assertion, it will go down as EVIDENCE to the court. Along these same lines, unless she OBJECTS to the assertion that she has a substance ABUSE problem, and that such usage affected her parenting, then CPS will "win" on those assertions as well. So.... go to your state law, under neglect (assuming that they are pinning "neglect" on her) it says:

2. Evidence of extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.

So, word-by-word, in her "Objections and Corrections to the report of the Social Worker" she needs to tear down that definition:
EVIDENCE: There was no drug test administered that reflected use of anything other than prescribed RX, nor was there any evidence submitted by CPS that mother was experiencing anything above expected side-effects of the Rx (and cite the Rx or drug info from the pharma info).
EXTENSIVE: CSW (child social worker) provided no evidence of any drug use other than prescribed Rx; mother was not rushed to the hospital in a drug overdose situation.
ABUSIVE: Mother has Rx bottle with 15 pills; Rx was filled on 7/1/12 and it was examined on 7/15/12 and there were 15 pills left as referenced in police report (or whatever you can reference... or just state this as your fact... no secondary evidence necessary)
CHRONIC USE: Mother has never taken Rx for this particular medication until after the surgery was performed on [date]. Doctor NAME prescribed the med for appropriate pain management and his medical license is current with the state. CSW has made no assertion as to the lack of doctor's credibility and appropriate medical/pharmaceutical care of mother so his care stands unchallenged.
CONTROLLED SUBSTANCE: While the Rx of [percoset or whatever] is indeed a "controlled substance" it is very well controlled by the doctor's appropriate prescription, the pharmacy's dispensation [check that word], and mother's appropriate usage. CSW has made no assertion that mother has done anything other that follow doctor's orders.
ALCOHOL: Mother.....

Et cetera, et cetera..... wrapping up with the fact that the children were never, EVER "demonstrably adversely affected."

You should absolutely prepare a statement for the court yourself WRT the oldest child being taken without court order and with no risk of imminent harm. Seriously.... the judge probably knows NOTHING about this and never will without you speaking up! You can prepare a statement/affidavit and have it submitted by your daughter's atty, OR you can ask the children's atty to submit it for you.

There are good judges out there (yes, and bad ones too), but they can't do anything if they don't have the information!

[whosechildrenarethey]

Thank you Eljay, as always your advice is actionable and precise. Things seem to be moving quickly now. My daughter receives calls with settlement offers from CPS legal team every other day and then today we were notified that CPS has a Permanency Staffing scheduled for later this month and we have been invited. As best I can tell a Permanency Staffing is held ususally 12 months in to determine progress with the Case Plan and to revisit the Permanency Goal. Why would they schedule a Permanency Staffing 5 months in to assess Case Plan task progress when she has Denied their allegations and asked for a trial that CPS Attorneys asked for a conitinance for and received? Her court appointed Attorney told her not to do any Case Plan Tasks so CPS's legal team already know there is no Case Plan progress. Could they be trying to scare my daughter into accepting one of their offers? They already told her if she doesn't take the settlement they can push the trial out 12 months. Does that sound right to you?

[Eljay]

Could they be trying to scare my daughter into accepting one of their offers? They already told her if she doesn't take the settlement they can push the trial out 12 months. Does that sound right to you?

They can ask, and if nobody objects, the judge might just allow it. Only a good, hardline judge will hold attorneys to firm dates. If CPS says, "oh, we need more time" then daughter's lawyer needs to object, saying, "CPS counsel has no evidence to present and is stalling in an attempt to punish my client for not taking their services. The fact remains that my client did not abuse nor neglect her children, CPS has no evidence and won't have any regardless of how many times they delay. I am submitting a motion to dismiss this petition and turn full legal and physical custody over to mother immediately."

[whosechildrenarethey]

Things seem to be moving so quickly now that I am somewhat confused. Basically the condensed version is the settlement offers have been coming in weekly. The original trial was continued on the request of CPS and we have pretrial and trial this week, however, on friday my daughter received an email from her court appointed attorney with yet another settlement offer. The offer was a dismissal of the petition in return for my daughter entering into a voluntary agreement with DCF for services. My daughter called me and asked me to notify her attorney that she did not wish to enter into any voluntary agreements with DCF and is anxiously awaiting her day in court. Next a copy of the dismissal arrives from DCF by way of email. Then this evening my daughters attorney sends my daughter an email stating he will go to the pretrial to make sure the dismissal is entered into the record. Houston we have a problem. I found this regarding Voluntary Dismissals of Dependency Cases:
In re Tomi C. (1990) 218 Cal.App.3d 694, 698. Section 390 dismissal of petition without prejudice is not a final, appealable judgment. Such dismissals do not involve the merits of the allegations; hence, another section 300 petition could be filed alleging the same acts. Further, where petitioner requests dismissal of the petition, the voluntary dismissal is not appealable unless the objector is aggrieved thereby.
How many ways can a person say "no thank you" to their deals of volunteering for services that aren't needed. It occurs to me CPS is trying to pull a fast one by having the case put on lay a way now by telling the judge their is an agreement between CPS and my daughter when there is not and has never been an agreement between them. It appears her court appointed attorney stipulated to this agreement on my daughters behalf and thats another huge problem because my daughter advised him (by email because he never answers his phone or returns phone calls to her) that he does not have her permission to stipulate to anything on her behalf without first talking to her about it. My daughter wants all this over with and her children returned to her. She wants her day in court and I think they are trying to play her for a fool ending up with another continuance. We are almost 6 months in now and my daughter just wants to get into the court room, get her Sworn Declaration on the record and have all this craziness over with but what she will not do is voluntarily enter into any agreements, plea bargains, Case plans, Safety plans etc.. with DCF. Both my daughter and I plan to be at the pretrial this week but aren't sure how best to make it clear to the court that there is no agreement between the parties and that the trial needs to take place on Thursday. Any suggestions? CPS appears to go to extremes to avoid a trial and instead obtain your buy in and agreement to a contract...

[Eljay]

In re Tomi C. (1990) 218 Cal.App.3d 694, 698. Section 390 dismissal of petition without prejudice is not a final, appealable judgment. Such dismissals do not involve the merits of the allegations; hence, another section 300 petition could be filed alleging the same acts. Further, where petitioner requests dismissal of the petition, the voluntary dismissal is not appealable unless the objector is aggrieved thereby.

No worries... the key wording here is WITHOUT PREJUDICE. Read on...

Without any loss or waiver of rights or privileges.

When a lawsuit is dismissed, the court may enter a judgment against the plaintiff with or without prejudice. When a lawsuit is dismissed without prejudice, it signifies that none of the rights or privileges of the individual involved are considered to be lost or waived. The same holds true when an admission is made or when a motion is denied without prejudice.

The inclusion of the term without prejudice in a judgment of dismissal ordinarily indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had not been started. Therefore, a dismissal without prejudice makes it unnecessary for the court in which the subsequent action is brought to determine whether that action is based on the same cause as the original action, or whether the identical parties are involved in the two actions.

The purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the defendant from using the doctrine of Res Judicata in any later action by the same plaintiff on the subject matter. The doctrine of res judicata (from the Latin, "a thing decided") is based on the importance of finality in the law. If a court decides a case, the subject of that case is firmly and finally decided between the persons involved in the suit, so no new lawsuit on the same subject may be brought by the persons involved. Therefore, the words without prejudice protect the plaintiff from a defendant's res judicata defense.

A court may also enter judgment with prejudice, however. This signifies that the court has made an adjudication on the merits of the case and a final disposition, barring the plaintiff from bringing a new lawsuit based on the same subject. If a new lawsuit is brought, a defendant can properly invoke res judicata as a defense, because a court will not relitigate a matter that has been fully heard before. Often a court will enter a judgment with prejudice if the plaintiff has shown bad faith, misled the court, or persisted in filing frivolous lawsuits.

from: http://legal-dictionary.thefreedictiona ... +prejudice

So... the attorney can ask that it be dismissed WITH PREJUDICE *IF* the judge has something to sink his teeth into. Just the fact that CPS is walking away isn't enough for the judge to dismiss with prejudice. In our case, we had a caseworker stating, in her report, THERE WAS NO ABUSE/NEGLECT AND THERE IS NO REASON FOR THIS CASE TO BE IN COURT. Our dismissal was not made with nor without prejudice. It was just dismissed, and we had that case worker's report as our evidence in case anything went wonky. The purpose of a dismissal without prejudice would be for a case, for example, where the accused abusive father left the country on the eve of prosecution and the non-offending mother was not seen as a risk... CPS wants to take custody of abused children, but when the risk is out of the country, they don't have a leg to stand on. Now, if dad returns in 3 months and mom lets him move back in? CPS shouldn't have to start all over, right?

How many ways can a person say "no thank you" to their deals of volunteering for services that aren't needed.

Well, quite a few, but these are public forums and I wouldn't want to expose any minors to the words that are swirling around in my head.

It occurs to me CPS is trying to pull a fast one by having the case put on lay a way now by telling the judge their is an agreement between CPS and my daughter when there is not and has never been an agreement between them. It appears her court appointed attorney stipulated to this agreement on my daughters behalf and thats another huge problem because my daughter advised him (by email because he never answers his phone or returns phone calls to her) that he does not have her permission to stipulate to anything on her behalf without first talking to her about it.

Well, keep in mind that CPS's goal is ONLY to get her on a service plan. If they can do that without having to go to trial, then they will make that offer. I'm guessing they offer that at EVERY pre-trial hearing. Of course they want to settle out of court IN THEIR FAVOR! That is their offer. A draft or proposed agreement/dismissal is NOT a final document. Are you alleging that the atty has already accepted this agreement? If your daughter didn't sign, then the offer has NOT been accepted! Plus, your daughter would have to be at that hearing as well, and the judge will read the proposed order/settlement and your daughter should be made to answer whether she both understands AND agrees to it.

I'm hoping that what you are thinking has already happened has NOT yet happened... and it really couldn't because she's NOT going to sign a VSP!

My daughter wants all this over with and her children returned to her. She wants her day in court and I think they are trying to play her for a fool ending up with another continuance. We are almost 6 months in now and my daughter just wants to get into the court room, get her Sworn Declaration on the record and have all this craziness over with but what she will not do is voluntarily enter into any agreements, plea bargains, Case plans, Safety plans etc.. with DCF. Both my daughter and I plan to be at the pretrial this week but aren't sure how best to make it clear to the court that there is no agreement between the parties and that the trial needs to take place on Thursday. Any suggestions? CPS appears to go to extremes to avoid a trial and instead obtain your buy in and agreement to a contract...

Again, I don't think this is extremes... it's standard operating procedure. They think they have the upper hand because they have the kids, but you've got truth and justice on your side.

[RainDE]

I just wanna say this case sounds just as bogus as mine does.
just another non-abuse non-neglect case.