Written by: Richard D Ackerman
Attorney licensed in California
What is Welfare & Institutions Code § 300? Why did CPS take my child?
California Welfare & Institutions Code Section 300 is designed to protect children from neglect and abuse. Abuse can be emotional, physical or sexual in nature. In theory, Section 300 is only for the protection of children and should not be used by local and state government to break up a family. In reality, CPS is almost always presumed to be correct in its determination that a child should be removed. Moreover, under its statutory framework, the dependency statute allows for appointed counsel to be given to you by the Court. However, many of the appointed counsel are part of an organization that will have an exclusive contract to provide these services. Your attorney, the child’s attorney and your spouse/ex-spouse’s attorney will often all work together in the same office and may not be motivated to fight heavily for your rights. You must be prepared for all that it about to happen to you. Your family and you better have competent legal counsel from day one.
The Detention Hearing
The detention hearing is the first hearing before the Dependency Court. This is where the Court will determine if there is enough of a threat to the safety of the child to justify detention by CPS. The Court will often decide where to temporarily place the child at this hearing. The child may be released from detention, may be placed with you under supervision, may be placed with a suitable adult or extended family member, or may be placed in protective custody. CPS does not need to prove much at this hearing (i.e., just a “prima facie” showing”) and you should have an attorney by the time this hearing occurs. Otherwise, appointed counsel will be given to you by the Court at this hearing.
The Jurisdiction Hearing
At this hearing, which takes place within a couple of weeks after detention, the Court will make a determination about whether the child has been actually abused or neglected within the meaning of Section 300. This is a critical hearing since an adverse finding could result in permanent effects on your career, the placement of the child, and upon your ability to keep your family together. The Court need only find, by a preponderance of evidence, that your child qualifies as a dependent child. CPS almost always wins on this hearing simply because they work with the Court everyday and are generally friends with the appointed attorneys. Dependency Court’s biggest challenge for you is that everybody knows each other and the Department’s reports are presumed to be correct and are admissible per se’ . At this hearing, a Jurisdiction Report will be prepared by CPS and presented to the Court. You have the right to contest jurisdiction and may call or cross-examine any relevant witnesses.
This is the hearing where a determination will be made about reunification, placement, and the types of programs that you may need to complete in order to get your family back together. The Court may also issue orders concerning family law matters at this time as well (custody, visitation, etc.). The evidentiary standard for removal from the home is higher than a preponderance of evidence. CPS must show a clear and convincing threat of harm to the child, should he or she be placed back with you.
The Court will review your case about every six months. This is why it is important that you prevail at the detention or jurisdiction hearing. If you do not prevail at that level, you risk supervised, limited or no contact with the child for months on end. At each review hearing, CPS is required to submit a report showing your compliance or noncompliance with the case plan. It is critical that you comply with all case plan requirements. If you do not, CPS may ask the Court to permanently place your child with someone else, including, but not limited to, adoptive parents, permanent foster care, or placement with a suitable relative.
Your chances on appeal are slim. Statistically, your chances on appeal are less than 10% for reversal of a lower court finding. This is because, most of the time, the Court of Appeal will simply make sure that the lower court (trial court) did not “abuse its discretion.” This just means that as long as there is some evidence to support the findings of the trial court, it will be upheld. The best chance of appeal occurs where there is a clear and prejudicial error of law. However, most dependency appeals arise from the determination of facts in an unfavorable way to the appellant. Appeals generally must happen within 60 days of entry of any dispositional order. You may also be able to seek review by extraordinary writs. This is a complex area of law and you must be represented by competent counsel at all stages of the proceedings