There is currently an effort in the State of California to have the model legislation (below) passed in an effort to ensure Parental Due Process in the Juvenile Dependency Courts.
The model legislation was written by a team of attorneys at Pacific Justice Institute http://www.pacificjustice.org/ in Sacramento California.
Anyone wishing to get involved and/or support this legislation please contact Greg Smart at cpsvictim@gmail.com
Model State Legislation
Parental Due Process Act
Model State Legislation
A BILL
To protect the fundamental due process rights of a parent in proceedings to terminate parental rights.
SECTION 1. SHORT TITLE.
This shall be cited as the “Parental Due Process Act.”
SECTION 2. FINDINGS AND PURPOSES.
(a) FINDINGS- the legislature finds that--
(1) Parental rights are so fundamental to the human condition so as to be deemed inalienable. Termination of parental rights equals or exceeds the detriment of criminal sanctions.
(2) The “liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests” recognized by the U.S. Supreme Court. Troxel v. Granville, 527 U.S. 1069 (1999). Moreover, the companionship, care, custody, and management of a parent over his or her child is an interest far more precious than any property right. May v. Anderson, 345 U.S. 528, 533, (1952). As such, the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. 645 (1972).
(3) State and local family services, child protective agencies, and courts have not recognized the rights of parents as inalienable, and, as a result, have failed to provide fundamental due process rights in the investigation and legal proceedings to determine abuse, neglect, and the termination of parental rights.
(b) PURPOSE- The purpose of this Act is to provide core fundamental due process rights to parents whose parental rights are subject to termination.
SECTION 3. DEFINITIONS.
As used in this Act:
(1) “Hearing” means any judicial or administrative hearing;
(2) “law enforcement officer” means an employee, the duties of whose position are primarily the prevention, investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws, including an employee engaged in this activity who is transferred to a supervisory or administrative position, or serving as a probation or pretrial services officer;
(3) “agency” means any state or local government;
(4) “Duress” consists of:
a. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife;
b. Unlawful detention of the property of any such person; or,
c. Confinement of such person, lawful in form, but fraudulently
obtained, or fraudulently made unjustly harassing or oppressive.
(5) “Actual fraud” consists of any of the following acts, committed by a party, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into an agreement or to rely upon it to his detriment:
a. The suggestion, as a fact, of that which is not true by one
who does not believe it to be true;
b. The positive assertion, in a manner not warranted by the
information of the person making it, of that which is not true,
though he believes it to be true;
c. The suppression of that which is true, by one having knowledge
or belief of the fact;
d. A promise made without any intention of performing it; or,
e. Any other act fitted to deceive.
(4) “Undue influence” consists of:
a. In the use, by one in whom a confidence is reposed by another,
or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair
advantage over him;
b. In taking an unfair advantage of another's weakness of mind; or,
c. In taking a grossly oppressive and unfair advantage of another's necessities or distress.
(5) “Malice" means conduct that is intended by the person to cause injury or despicable conduct that is carried out with a willful and conscious disregard of the rights or safety of others;
(6) “Emergency” means exigent circumstances in which immediate action is required to prevent the imminent physical injury or death of a child.
SECTION 4. HEARINGS OPEN TO THE PUBLIC.
(a) Upon the request of a parent, guardian or custodian, the right to have proceedings open to the public shall be guaranteed in the following circumstances:
(1) any hearing for the purpose of terminating parental rights;
(2) any hearing for the purpose of determining if a child is or has been deprived.
(b) Notwithstanding subsection (a), a judge may, upon consideration of written motion and papers filed in opposition, exclude the public if it is determined, by a preponderance of the evidence, that the safety of the child would be in jeopardy by a public hearing.
If the public is excluded from the hearing, the following people may attend the
closed hearing unless the judge finds it is not in the best interests of the child:
(i) the child's relatives;
(ii) the child's foster parents, if the child resides in foster care; and,
(iii) any person requested by the parent.
SECTION 5. TRIAL BY JURY.
Upon the request of a parent, guardian or custodian, the right to a trial by jury shall be guaranteed in the following circumstances:
(1) any hearing to terminate parental rights;
(2) any hearing to determine if a child is or has been deprived.
SECTION 6. RELIGIOUS/CULTURAL/MORAL/ETHNIC VALUES AND BELIEFS OF PARENTS
In placing the legal custody or guardianship of a child with an individual or a private agency, a court shall take into consideration the religious, cultural, moral and ethnic values of the child or of his/her parents, if such values are known or ascertainable by the exercise of reasonable care.
SECTION 7. ELECTRONIC OR DIGITAL RECORDING OF INTERVIEWS
Except in the case of an emergency, any law enforcement officer, agent or employee for a state’s health and welfare department or child protective services, or mental health professional, who interviews a child for the purposes of investigation, shall electronically and/or digitally cause to be made an audio and visual recording of all questioning of, and interviews with, children. All recordings made pursuant to subsection (a) shall be made available to the parent, guardian or custodian of a child not later than ten days prior to any hearing to terminate parental rights or to determine if a child is or has been deprived.
SECTION 8. EVIDENCE IN FACT-FINDING HEARINGS
(a) Only evidence that is competent, material and relevant may be admitted in a
fact-finding hearing.
(b) Any determination at the conclusion of a fact-finding hearing that
a respondent did an act or acts must be based on proof beyond a
reasonable doubt. For this purpose, an uncorroborated confession made
out of court by a respondent is not sufficient.
SECTION 9. RIGHT TO A SPEEDY TRIAL
(a) In that removal of a child from a home for even brief periods is an extreme hardship on families, upon the request of a parent, guardian or custodian, the right to a speedy trial shall be guaranteed in the following circumstances:
(1) any hearing to terminate parental rights;
(2) any hearing to determine if a child is or has been deprived.
(b) A hearing, as described in subsection a, shall be conducted within thirty days of any type of removal of a child. In the event that the thirtieth day falls on a legal holiday or other day when the court is not in session, the hearing shall be conducted prior to the thirtieth day. In no event shall a hearing be conducted beyond the thirtieth day after the removal of a child if the right to a speedy trial has been exercised.
SECTION 10. WAIVER OF RIGHTS
The rights of a parent or guardian as described in this Act cannot be waived, neither can parental rights be terminated, if said waiver is due to:
(1) mistake;
(2) fraud;
(3) undue influence; or
(4) duress.
SECTION 11. IMMUNITY
(a) Notwithstanding any other provision of law, the civil immunity of juvenile court social workers, agents or employees of a health and welfare department or child protective services or law enforcement official authorized to initiate or conduct investigations or proceedings shall not extend to any of the following:
(1) Perjury;
(2) Fabrication of evidence;
(3) Failure to disclose known exculpatory evidence;
(4) Obtaining testimony by duress, fraud, or undue influence.
(b) Notwithstanding any other provision of law, any prosecutor, investigator, agent or employee of a state’s health and welfare department or child protective services who induces a parent to waive any of his or her rights under this Act by
(1) fraud;
(2) undue influence; or
(3) duress shall be subject to civil liability.
SECTION 12. DAMAGES
In the case of a determination by a court or jury of any violation of a parent’s rights under this Act, damages shall be presumed.
SECTION 13. ATTORNEYS FEES
Subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988 (b) and (c)) (concerning the award of attorney's and expert fees) shall apply to cases brought or defended under this Act.
SECTION 14. SEVERABILITY
If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected.
Comments
If this gets passed - finally - it would mean "some" justice. Jury! - omg - what a thought.
Termination is EQUAL to say, a 3 to 5 year prison sentence? (For a loving father). And this occurs with NO JURY ? OMG? ABSURD!
Thanx Greg, for all the hard work.
Section 5 needs a statement that says the right to jury trial can only be waived by an assertive act of waiver; currently the WIC contains language that make the waiver automatic unless you make a request for jury trial.
There probably should be language that prohibits the care system from interfering with the right of the child(ren) to have conversations on the state of the case.
Also section 11 is defective: it should include all other violations of law explicitly.
Also you since one of the major problems with the WIC as it is that it doesn't define the minimum level that child neglect and abuse needs to reach before the child can be placed: there's a study by a MIT prof. which found that many children would be better cared for at home, but otherwise were placed on minimal grounds.
Also you may want to explicitly eliminate all the hearsay that wouldn't be allowed under Crawford v Wash.
Kids are being seized from good homes, and a bunch of lies sworn to by CPS workers when the parent isn't even there. The CPS worker gets up there and says whatever she wants, the JUDGE signs the order removing your child. AND all of a sudden you spend the rest of the year trying to defend yourself against a bunch of sanctimonious holier than thou heartless wolves colluding together. Not to help children - but to keep money coming in. This is the most important thing in my life - my children and the JUDGE puts the kids in FOSTER CARE? what is going on (rhetorical question)/ Yes./ Due process. Please. Amen.
I think this is wonderful, we need something like this to make CPS accountable. My grandchild was taken from my family and was not given to me his grandmother to raise, but placed in an adoptive home after I had been in his life daily for 18 months.!!! Cruel to him and my family. PLEASE ADD SOMETHING REGARDING FAMILY TIES, GRANDPARENTS OR OTHER FAMILY MEMBER SHOULD BE ABLE TO RAISE THE CHILD/CHILDREN IF TAKEN FROM THEIR PARENTS AND CANNOT BE RE-UNIFIED.
Thank God for Pacific Justice! Stop the Rackeering! Let the children testify! Open up the "Secret" courts!!!
Do I have your permission to put this up on my blog, flds.ws ?
Actions like this are occuring all over the Country, and we need to get the word out.
There is also a class action suit out there planned, and we intend to take it National.
When is this going to be presented to the legislation... Please advise when and where.. thanx
Thank you for all your research and work to expose CPS fraud and conspiracy. I wish U were in TEXAS.
This bill is long over due. If this bill doesn't pass, it's time to REVOLT.
its about time something/someone is doing something about this
Totally support this! The juvenile court system is broken, unethical and contridictory to any and all logic. How can any court of law in the US not be held accountable to its decisions? My children were removed from my home because my husband beat me up, and according to child welfare services, I failed to protect my children from the emotional effects of domestic violence - and therefore I am an unfit mother. In case your wondering, the DV incident was the first and only incident ever, I am seperated from my husband, he lives in his own place. I have never been anything less than a loving a devoted mother; I did not ask my husband to assult me. I am a victim of a crime. How is this possible? I never thought anything like this occurred in the US; I assumed only bad parents have their kids removed, people who hurt their kids - stuff like physical abuse, negelect, sexual abuse, or being totally strung out on drugs - I now know that this is not the case. I am a highly educated and skilled, IT professional; I pay taxes, and I own a home. All the fun stuff... And it happened to me. I had my chikldren taken without any explaination or understanding. They just came to my house seven days after the incident and took my children. I am horrified.
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