wondering what happens when you appeal

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justina78
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wondering what happens when you appeal

Postby justina78 » Sun Feb 25, 2007 9:53 pm

my attorney is appealing our case i was just wondering what happens in the state of california at an appeal and how an appeal works

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Frustrated
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Postby Frustrated » Mon Feb 26, 2007 6:48 am

I have no idea, but I have seen cases that go thru Federal Court Level had won cases better than in Kangroo 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

rlfroo
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Postby rlfroo » Tue Feb 27, 2007 8:10 am

I am also in California. From what I understand is that a neutral judge that does not know about the case reviews the case and listens to testimony and then makes the decision if the first judgement was valid or not. From what I hear is that only 1% of the cases of appeal ever get over-turned. And out of those only 4% of those cases are the children returned to the bio-parents. The ones that usually win appeals is when they did not to a proper notification on the parents or did some major paperwork flaw. I have been a foster parent for over 10 years and very involved in training/mentoring etc. and honestly I have only heard of 1 case that won the appeal process only to later on have TPR done again, by having the proper paperwork. This was all because they failed to properly notice the parents. I know this is not good news but this is only what I have seen in my experience in CA. I wish you the best of luck in your situation.

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good dad
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Postby good dad » Tue Feb 27, 2007 9:36 am

The appeals judge only rules "on the evidence, objections, complaints, etc. that was presented during the case"...No new evidence or issues can be brought up during the appeal.
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rlfroo
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Postby rlfroo » Tue Feb 27, 2007 11:42 am

Good Dad, Does that mean that they can't file a change of circumstance at this hearing/Trial? That is new to me. One on of the cases I worked with a long time ago, the reason the Birth parents gave was that the child was an American Indian. They were told to bring proof of that into the court. NOw they never did bring in the information, but from what I understood that was all new information. Is it different because of the Indian heritage issue? I am learning so much on these boards and my mind is opening to more and more information! Thanks everyone.

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Postby Frustrated » Tue Feb 27, 2007 7:50 pm

Yes, According to CPS Manual, they MUST register the Children under Indian BAND/Chief Number and Tribe...and if possible a Reservation name. that's the rule of their policy. If they failed to do so, they are in trouble. It is the LAW according to the Indian ACT Law. The Government does not want any trouble with the Tribe Chiefs.
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 Marina » Wed Feb 28, 2007 5:35 am

I am still in the process of learning things.

When my friend went to court last week for a Termination of Parental Rights hearing, the lawyer pulled a plea bargain with intention to appeal. Afterwards, I asked about bringing up new material in the appeal.

This particular appeal goes from Juvenile and Domestic Relations Court to Circuit Court. Juvenile and Domestic Relations Court is a "Court Not of Record," under Code of Virginia.

Circuit Court is a "Court of Record."

The table of appeals cases that are posted on the internet evidently come from the "Circuit Court of Appeals." So the Circuit Court is the trial court, where a record is made of the case, and the Circuit Court of Appeals only looks at the record, and does not allow new material.

In the Circuit Court trial, the court hears the case from the beginning, as if it were a totally new case. Note also that Foster Care and Adoption do not generate entitlement funding for Circuit Court, whereas they DO generate funding for Juvenile Court.

This process is not adequately described in the policy manual, etc. After we experienced it, then I could go back and read in the code about the courts, but it is not adequately explained by anybody to the parent.

Hope this helps people to know what to look for and what to ask.

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good dad
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Postby good dad » Wed Feb 28, 2007 5:37 am

Good Dad, Does that mean that they can't file a change of circumstance at this hearing/Trial?

Nope, not during Appeal. The Indian Child Welfare Act is a federal law which regulates placement proceedings involving Indian children. Being it's federal it supercedes any state law and may have played a role in it..

Are you sure the Appeals court was the one who asked them to bring in the info?
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Postby rlfroo » Wed Feb 28, 2007 6:11 am

Thanks for all the information. Good Dad that is what the Social worker told me, but you know what that is sometimes worth, lol!

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Postby Marina » Wed Feb 28, 2007 6:39 am

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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.



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*
*

Chapter 2
The Court System and Child Protection

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

How courts are organized and how they divide their caseloads vary widely by State and even within a State.

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*
*
Here are some random links which give you a sense of what to expect.

http://forum.fightcps.com/viewtopic.php?t=4623
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fightingfor3
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Postby fightingfor3 » Thu Mar 01, 2007 9:30 am

We are going to appeals on the adjudication (just took place, nine months after they took my kids.) I am at a 120 day transition period, but my lawyer told me that May 10th the children have to come home or they have to out of the blue move to TPR, since May 10th will be 2 years exactly since my children were taken.

I have motions that I have written and are posted on here challenging jurisdiction, void for vagueness, and to make a negative reasonable efforts determination, as well as the objectios and corrections, and declaration of facts. I wasn't planning to file them until the last hearing when they close my case since I am so close to getting them home.

If I file after the appeals is filed, will my motions (with exhibits) not be heard in the appeals?
"The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That in essence is facism." Franklin Roosevelt

"Injustice anywhere is a threat to justice everywhere." Dr. Martin Luther King Jr.

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Postby Bob_Lynn » Thu Mar 01, 2007 11:49 am

fightingfor3 wrote:If I file after the appeals is filed, will my motions (with exhibits) not be heard in the appeals?


This is just an educated guess and you'll have to verify with someone (an attorney?) more knowledgeable than I but you appeal the record, which is the court order and the transcript of the Hearing that resulted in the court order. So as I understand, anything filed in the lower court after the Notice of Appeal will not be part of the record for the purpose of the appeal. I strongly suggest you file everything BEFORE you file a Notice of Appeal. You should also give the lower court enough time to rule on the motions (if possible) but make sure you have enough time within the deadline to appeal. Appeals courts just love to toss out appeals on technicalities, especially tardiness.

Also, how are you personally filing anything if you have an attorney representing you?
We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. Edward R. Murrow

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Postby Bob_Lynn » Thu Mar 01, 2007 11:57 am

You should also be aware that I am working with someone (rendering my opinion of course, not legal advice*) on an appeal where there was a challenge to subject matter jurisdiction. Jurisdiction was challenged for violation of due process and equal rights. Part of the civil rights violations were that the lower court was heavily biased in that the judge ruled in favor of every motion and petition by the opposing party and ignored all motions from the appellant.

So if your motions are ignored, this may help your appeal.

*PS - I am also only giving you my opinion and not legal advice as I'm not an attorney.
We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. Edward R. Murrow

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Postby Marina » Thu Mar 01, 2007 12:03 pm

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If you are appealing the adjudication at the same hearing as the TPR, then it seems that you would need to have all your ducks in a row, because after TPR they don't hear new material.

Here are "Legal and Judicial Issues" that may be helpful also.

http://www.childwelfare.gov/pubs/userma ... ppende.cfm
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fightingfor3
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Postby fightingfor3 » Mon Mar 05, 2007 4:07 pm

Well I just talked to my lawyer again. She said that the two years
that the state was allowed to keep them (May 10th) means nothing
because the transition plan fulfills that requirement?! So, 120 days
starting March 1st. They won't be in my "physical custody" until July 1. CPS will not close the case until Oct. 1. SEVEN MONTHS FROM NOW! Which means anything can happen in that time! The Permanency Hearing is coming up any day now or should be. My lawyer said that will be the last hearing. She has already filed notice for the appeals, which means they won't have anything in my file that is in my favor, if they don't take anything filed after the notice. NADDA. So, I may loose out on the appeals now too. She was appealing based on due process violations and that was it.

My motions can still be heard and if denied appealed but I wrote them for the intent of the appeals. If I file them I will be without a
lawyer. If I'm without a lawyer they may go in for their attack and
as I said will most likely make me out to be some sort of a loon who
is uncooperative, especially that I would fire my attorney and "attack" everyone so close to getting my kids back.
"The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That in essence is facism." Franklin Roosevelt



"Injustice anywhere is a threat to justice everywhere." Dr. Martin Luther King Jr.

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Postby Frustrated » Mon Mar 05, 2007 6:54 pm

Don't you hate that? They always postpone this and postpone that...intently putting it off to win their case against you.
7 months? that sounds like a danger warning because that is when they consider TPR around 9 months to a Year. That's what I have seen in so many families' cases. When they postpone, and then bingo bango, they introduce this crap.

Usually 6 months of Saftey plan and Service Plan, and Permanacy and Dependacy hearings would be after that, after 6 months to 9 months. TPR gets introduced around 9 months to a Year.
Hopefully in that time, they won't pull this crap on you and be true to their words that nothing will happen. But in reality, something will happen again such as new case will pop up and they will be right at your door once more. :roll:

Is this ridiculous about "transitition"? Why prolong it and make the Children suffer some more for not seeing their Parents in so and so months? Bring them back home asap. Why prolong suffering on both sides? They say it is harmful for the children for "swift placement" back to the Parents. Harmful? How about it is even more HARMFUL REMOVING THEM FROM THEIR ONLY PARENTS THEY ONLY KNOW OF SINCE BIRTH?! I think that loss on both sides are more harmful than this so called "transition period".
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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fightingfor3
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Postby fightingfor3 » Tue Mar 06, 2007 6:14 pm

I wasn't very clear. My kids will be in care for two years on May 10th. I've already been adjudicated. I've already made it through the initial permanency hearing and now I am at 120 day transitional period. The kids are scheduled to come home July 1st and the case to be closed Oct. 1st.

I was under the impression from what my lawyer told me the kids would be home and case closed May 10th (two year mark, they only had two years).

I was going to wait to file my motions (http://forum.fightcps.com/viewtopic.php?t=6178&highlight= And http://forum.fightcps.com/viewtopic.php?t=6182 as well as the dec of facts, and objections and corrections) before but decided to wait to sort some of this out and because things to a turn in my favor.

My lawyer already filed the notice of appeals and will file the brief soon, which means my motions if I file at this point will not be reviewed in the appeals.

Once I file the motions I will be sui juris.

I still plan to file at some point closer/closest to them closing this case to ensure my children coming home and to still have everything that has been wronged righted.

I have printed out a complaint form from the board of licensees in my state and will make a formal complaint against my previous social worker for the lies and the blatant breach of confidentiality.

I will also be making a formal complaint to the bar against the GAL.

I have a tape that I will have transcribed that has my ex on it admitting that he orchestrated this whole scheme. I plan to organize my case and to compile everything and make several copies.

From there I will begin writing letters to all the legislators again. And then begin to work on the lawsuit.
"The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That in essence is facism." Franklin Roosevelt



"Injustice anywhere is a threat to justice everywhere." Dr. Martin Luther King Jr.

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fightingfor3
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Postby fightingfor3 » Wed Mar 07, 2007 10:35 am

Does the appeals stay the legal case? I was under the impression that it does not, that if you wanted a stay you had to motion for it. If it does, then CPS will continue to have an open case until determination?
"The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That in essence is facism." Franklin Roosevelt



"Injustice anywhere is a threat to justice everywhere." Dr. Martin Luther King Jr.

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Postby Frustrated » Wed Mar 07, 2007 12:06 pm

CPS can do whatever they want. Even bringing old cases back. It is outrageous. But you know, when it comes to CPS, it is always endless harrassment, no matter how you look at it or stop it. They will always be in everybody's face.

The only way is to stop them is document proof of their blantant lies. Even the Media of their lies on video helps somewhat. But they do take them down. But we keep on fighting until our last breath.

There are many ways to go, appeals, lawsuits, complaints, media, videos, document proof, write a book or even move to a different location like a complete different Country. :roll:
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 Bob_Lynn » Wed Mar 07, 2007 2:39 pm

fightingfor3 wrote:Does the appeals stay the legal case? I was under the impression that it does not, that if you wanted a stay you had to motion for it. If it does, then CPS will continue to have an open case until determination?


You appeal an order. So that means the case continues if it's not determined by the order. You can file a Motion of Stay and support it partly with the argument that you filed a Notice of Appeal.

For example, if the order terminates parental rights and CPS wants to proceed with adoption, you file a Notice of Appeal, then a Motion of Stay Pending Appeal. Since you file the Motion of Stay in the lower court, the lower court would have to rule on the Motion.

Please verify all the above with an attorney, this is strictly my opinion and not legal advice.
We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. Edward R. Murrow

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Postby Frustrated » Wed Mar 07, 2007 7:08 pm

Fredrickson Appeal
March 5, 2007
Rick Fredrickson, deprived of his child by a Saskatchewan court, has filed an appeal. The text of the appeal is online.

http://www.fixcas.com under current news
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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