My notes on "failure to protect"

Opinions from various courts of appeal and supreme courts - both federal and state.

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KDus
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My notes on "failure to protect"

Postby KDus » Sun Nov 21, 2010 9:43 pm

“The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness.”,,
“The legislative history thus confirms an unmistakable intention to narrow the grounds on which children may be subjected to juvenile court jurisdiction.”,
“Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” In re Rocco M., 1 Cal. App. 4th 814 - Cal: Court of Appeals, 1st Appellate Dist., 2nd Div. 1991


An act or acts of abuse do not in themselves provide a basis for juvenile court jurisdiction. There must be some reason to believe the acts may continue in the future. In re Jennifer P., 174 Cal. App. 3d 322 - Cal: Court of Appeals, 4th Appellate Dist., 1st Div. This point effectively requires a showing that at the time of the jurisdiction hearing, the child is at substantial risk of serious physical harm in the future.


Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; "[t]here must be some reason to believe the acts may continue in the future." (In re Jennifer P. (1985) 174 Cal. App.3d 322, 326 [219 Cal. Rptr. 909];

Appellate courts have often been compelled to reverse a finding of jurisdiction under subdivision (b), where the facts and the juvenile court's findings establish wrongdoing of some sort on the part of the parents, but not the risk of serious physical harm or illness required by the subdivision.
IN RE JH, Cal: Court of Appeals, 2nd Appellate Dist., 4th Div. 2008




How specifically have the minors been harmed or will be harmed?

First group: an identified, specific hazard in the child's environment??

The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.

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LindaJM
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Re: My notes on "failure to protect"

Postby LindaJM » Mon Nov 22, 2010 2:58 pm

California court cases... I wonder if I can put a link to this in the California section of the board.
......................
(I did it!)
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Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...

Suzannex07
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Re: My notes on "failure to protect"

Postby Suzannex07 » Thu Jan 13, 2011 9:26 pm

Thank You for the best of the best information I could have gotten all day.... I've been at this research for the last 4 days.
I'm scared for my 2 daughters who were taken to Placerville CPS by the El Dorado Sherrifs Dept after the Father was arrested for a Violation of Parole having alcohol in the home and child abuse.....

My daughter called my cell phone and left a msg indicating to me her Father was hurting her. I was a wreck and went to my local police dept. I had to call the El Dorado county Sherrif dept. where she was residing since Dec. 17th.

Sad to think a Father would take his 9 year old daughter away from all she has ever known......Her only encounters with him were mostly traumatic....

The 1st time she met him she was 3. Father had bonded with her sister and our daughter who was 8 at the time. Father decides to move to Oregon without any communication.....That was a nightmare and I had to obtain the girls whereabouts with help from his Parole Officer. Needless to say the girls were home with me in a couple of weeks and Father was charged with kidnapping and we hadnt heard from Father for another 4 years....

Again he enters in the picture by showing up at older daughters school....I lived in a nice small town and worked outside the gated community with the luxory of my Mother to babysit......
Of course I allowed him and his girlfriend to visit at my Mothers house where we were living until I moved into the house down the street... His visit went by and 3 days later he showed up with police and a 4 year old temp cust order and takes both girls crying and everything.... My baby at 8 was hiding under the bed and my Mom sat sobbing uncontrollably as they pulled her out to go with this man she didnt know......
I went to court and it took 3 days till the Judge ordered my children to be brought back to Mother immediately and the Judge frowned on Father.....

I dont get it....

later we agreed our oldest could live with him for 7th grade. she had missed him her whole life.... youngest with Momma.
What I didnt know was our oldest daughter was subject to Fathers Domestic Violence and Alcohol Abuse to the point of denial....
So back to the date of Dec. 17th when Father shows up at the school to get daughter based upon allegations she was molested by my boyfriends friend.....My baby entered that office and screamed her head off yelling "nooooo, nooooo, wasnt my Mommy" It was one of the saddest days of my life....Everyday we spent together starting with breakfast at the school......
Im still homesick and now really worried and concerned for the safety of my daughters in the states custody.

I cant believe a judge would rule on a mediators recommendation for temp cust to Father after he awarded me the Mother custody of both girls the day prior?

And with that temporary custody came more ABUSE for my baby......and she also had to be the one to save her sister....Its awful to see in print how your child has been abused when not in your care. Its even worse when Father falsified information given to the mediator to get that custody in his favor.

As a realtor for the last ten years ive been looking for work up and down the pacific coast to no avail....I got a job at WalMart in the town I live in....Times are tough for everyone and I always have a roof over my head where I am safe to protect my priceless babies.....Why on earth would CPS keep my girls on neglect bases upon the assumption I am in the same location/residence where any abuse took place....? No No and again NOOOO....

I will keep you posted.

Sincerely Suzanne Heffner

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LindaJM
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Re: My notes on "failure to protect"

Postby LindaJM » Tue Jan 18, 2011 12:33 pm

Suzanne, your ex-husband sounds like a nightmare. Abusive men don't give up after divorce; they just find ways to use the kids to abuse you and cause you more pain. I know, because I went through that.

Be sure to read my page about divorce - the link is in my signature below this post.

Yes, keep us posted. And ... you don't need to put your real name on this board... as a matter of self-protection. Of course, the board isn't indexed by google so that's some measure of protection. I hope you can find information on the site that will help you with your mission to regain custody of your daughters.
Sample Document Library

Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...

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KDus
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Re: My notes on "failure to protect"

Postby KDus » Tue Jan 18, 2011 2:05 pm

CPS cases have nothing to do with proof or evidence until the day of trial.
Everything that happens before that is at the whim of a social worker, unless you have an attorney that cares.

Declarations probably won't get read for a month, so use motions that must be ruled on in a timely fashion. I haven't tried a memo, but that's what CPS uses to make changes to their games. So, maybe a memo will make something happen.

BTW, CPS uses a trick to avoid rulings. They will ammend their petition before the next hearing so that your motion, demurrer, or memo isn't relavent anymore. Then, they can keep legal doors closed that would have opened with a ruling in your favor.
In my case, they dropped an alegation under one part of section 300 and moved it to another. So, there was no reason to rule on the part I wanted dismisses; and the accusation is still there.


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