This Motion is made pursuant to Cal. Civ. Proc. Code § 430.50 ( i ) improper Notice and
unverified Petitions, which is prejudicial and misleading; ( ii ) the Court lacks jurisdiction over the
children; ( iii ) the case is beyond the Statutory limitation period; and ( iv ) the agency has failed to,
and cannot meet its burden of proof that the children fall under the statutory definition of
dependents.
This Motion is based on the pleadings herein, and on such further oral and/or
documentary evidence as may be presented or judicially noticed at the hearing of this Motion.
MELODY J. RODGERS
Defendant
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DEFENDANT’S MOTION TO DISMISS
TABLE OF CONTENTS
LEGAL ARGUMENTS 3
I. PLAINTIFF(S) FILED AN UNVERIFIED PETITION AND FAILED TO PROVIDE
ADEQUATE NOTICE 3
II. THE COURT LACKS JURISDICTION OVER THE CHILDREN 4
III. THE CASE IS BEYOND THE STATUTORY LIMITATION PERIOD 6
IV. THE AGENCY HAS FAILED TO, AND CANNOT MEET ITS BURDEN OF PROOF
THAT THE CHILDREN FALL UNDER THE STATUTORY DEFINITION OF
DEPENDENTS. 7
CONCLUSION 8
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DEFENDANT’S MOTION TO DISMISS
LEGAL ARGUMENTS
I. PLAINTIFF(S) FILED AN UNVERIFIED PETITION AND FAILED TO
PROVIDE ADEQUATE NOTICE
i. Inadequate Notice
In California, a petition to commence proceedings in the juvenile court to declare a child
a dependent child of the court must include, inter alia: a proper social study, sent 10 days before
the court in writing. The report/study should include compelling evidence why the children
should not be returned home in order to sustain a continued case because the court is supposed to
presume at each hearing that the children should be returned home as soon as no danger is
present. The report should also give the children the opportunity to express their wishes and
include this information in the report; and a notice to the father, mother, spouse, or other person
liable for support of the child” 1 . Failure to provide adequate notice prevents the respondent from
filing a proper defense. Besides, the requirement for notice of hearings is a fundamental concept
of the due process rights under the Californian Constitution.
“An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” 2 The requirement for notice also includes an obligation, upon learning that an
attempt at notice has failed, to take “reasonable follow-up measures” that may be available 3 .
In addition, notice must be sufficient to enable the recipient to determine what is being
proposed and what he must do to prevent the deprivation of his interest 4 . Ordinarily, service of
1 Cal. Welf. and Inst. Code § 332, and § 335. .
2 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County,
517 U.S. 793 (1996).
3 Jones v. Flowers, 547 U.S. 220, 235 (2006).
4 Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970).
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DEFENDANT’S MOTION TO DISMISS
the notice must be reasonably structured to assure that the person to whom it is directed receives
it 5 .
It is the intent of the legislature to ensure the minors are notified of any proceeding(s) that
affect their right(s). For instance, if a child below 12 years old is adjudged a dependent child of
the juvenile court, the legal counsel or guardian ad litem has a duty to inform the child of the
Court’s decision 6 .
In the instant action, Minors S. Brown and P. Brown, and the Respondent mother were
not notified properly of the hearings. Besides, the legal counsel of the attorney has failed to
communicate with children cognitively. The foregoing amount to a violation of the children’s
and the mother’s due process rights. This case should therefore be dismissed in that regard.
ii. Failure to verify the Petition
“Any petition filed in a juvenile court to commence proceedings pursuant to this chapter
that is not verified may be dismissed without prejudice by such court.” 7 (Emphasis added).
“In juvenile proceedings, verified pleadings are required to invoke the jurisdiction of the
court over the subject matter.” 8 It follows; a petitioner cannot invoke the Court’s jurisdiction by
filing an unverified pleading.
In the instant action, the Petitioners failed to verify the Petition, which is sufficient
ground for the dismissal of the Petition.
II. THE COURT LACKS JURISDICTION OVER THE CHILDREN
It is the intent of the Welfare and Institutions Code that that the Court does not “disrupt
the family unnecessarily or intrude inappropriately into family life” 9 .
5 Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey,
456 U.S. 444 (1982).
6 WIC § 353(2)(b).
7 WIC § 333.
8 In re Triscari Children, 109 N.C. App. 285, 288, 426 S.E.2d 435, 437 (1993).
9 WIC§300.1 (j).
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DEFENDANT’S MOTION TO DISMISS
The Court is charged with “expeditious and effective ascertainment of the jurisdictional
facts and the ascertainment of all information relative to the present condition and future welfare
of the person upon whose behalf the petition is brought 10 . The court must therefore take whatever
appropriate action is necessary to fully protect the interests of the minor 11 .
In the instant action, Defendant believes her right to parental autonomy and right to
family integrity has been infringed upon by the petitioners who filed claims without presenting
evidence that meets the elements for court jurisdiction. Notably, S. Brown (4 years old) and P.
Brown (3 years old) have expressly stated that they want the court to terminate jurisdiction. They
have uttered in their words thus “Mommy is the best and I want to go home now”. It is the
Defendant’s contention that subpoenas be issued for the social worker, Rafel Moultrie – husband
of Defendant, Nakeya Clark- foster mother; who heard the statement from the children. As it
shall be seen hereunder, the Petitioners have not sufficiently invoked this Court’s jurisdiction for
a number of reasons. These include:
a) Petitioners failed to file a verified Petition;
b) Petitioners failed to properly notify Defendant;
c) The children have asked the Court to terminate jurisdiction.
d) Petitioner lacks sufficient evidence to classify the children as Dependents of the
Court.
III. THE CASE IS BEYOND THE STATUTORY LIMITATION PERIOD
10 WIC § 350(a).
11 WIC § 317 (e).
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DEFENDANT’S MOTION TO DISMISS
Under the Welfare and Institutions Code, continuances shall be granted only upon a
showing of good cause an only for that period of time shown to be necessary by the evidence
presented at the hearing on the motion for the continuance 12 . Notably, neither a stipulation
between counsel nor the convenience of the parties is in and of itself a good cause. Further,
neither pending criminal prosecution nor family law matter shall be considered in and of itself as
good cause. Whenever a continuance is granted, the facts proven, which require the continuance
shall be upon the minutes of the court.
In order to obtain a motion for a continuance of the hearing, “written notice shall be filed
at least two court days prior to the date set for the hearing together with affidavits or declarations
detailing specific facts showing that a continuance is necessary, unless the court for good cause
entertains oral motions for continuances 13 . Besides, “if a minor has been removed from a parent’s
or guardians’ custody, a continuance shall not be granted that could result in a dispositional
hearing, held pursuant to Section 361 being completed longer than 60 days after the hearing at
which the minor was ordered removed or detained, unless the court finds there are exceptional
circumstances for the continuance” 14 .
In considering the minor’s need for prompt resolution of his or her custody status, there is
a need to provide children with stable environments, and to minimize the damage to a minor
prolonged temporary placement 15 .
In the instant action, the Petitioners are statutorily barred from proceeding with the case.
It is Defendant’s contention that the case cannot be litigated in court without denying the
Defendant due process rights as well as causing harm to the children because of the extended
temporal placement. Petitioners have also failed to provide a good cause why the court should
allow the untimely claim. It follows; the only remedy is a dismissal of the case.
12 WIC § 352.
13 Ibid, 3.
14 Ibid, 3(b).
15 Ibid,(a)(1).
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DEFENDANT’S MOTION TO DISMISS
IV. THE AGENCY HAS FAILED TO, AND CANNOT MEET ITS BURDEN OF
PROOF THAT THE CHILDREN FALL UNDER THE STATUTORY DEFINITION
OF DEPENDENTS.
Defendant states for the record that this juvenile court lacks subject-matter jurisdiction
because her children do not fall under the category ‘dependent children’ 16 . Notably, the agency
(Plaintiff) has not provided evidence that Defendant’s children, based on the statutory definition
of WIC§300 (a)(b)(1) have ‘suffered harm’ or are at ‘substantial risk of harm’ or under
WIC§300 (2) ‘is suffering serious emotional damage’ or ‘is at risk of suffering serious emotional
damage’.
“For the purposes of jurisdiction, a court may find there is a substantial risk of serious
physical harm based on the manner in which a less serious injury was inflicted, a history of
repeated inflictions or injuries on the child of the child’s siblings.” Allegations of serious
emotional damage must be evidenced by “severe anxiety, depression, withdrawal, or untoward
aggressive behavior toward self or others, as a result of the conduct of the parent or guardian” 17 .
Defendant contends that when following statutes, courts must apply a statutory duty
when the statute is valid and specifies and remedy. Moreover, violations of statues are used to
determine duty of care and if there is a breach who will be liable. When a court is presented with
a statute, the court may use the statue as the standard of care when it appears that the purpose of
the statute was to protect the class of persons described. It is worth noting that the statutes of the
California Welfare and Institutions Code is designed to preserve families and protect children
from extended temporal placements beyond what is necessary to ensure the safety of the
children. These extended placements are emotionally traumatic to children. WIC statutes are
moreover designed to not burden respondents with proving themselves fit which is a violation of
the federally protected 14th amendment right to due process.
16 WIC § 300.
17 Ibid, (2)(c).
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DEFENDANT’S MOTION TO DISMISS
Parent’s right to care, custody and management of a child is a fundamental liberty interest
protected by the federal constitution that will not be disturbed except in extreme cases where a
parent acts in a manner incompatible with parenthood 18 .
When individual interests are at stake, which are particularly important and more
substantial than the mere loss of money, a clear and convincing evidence standard has been
required 19 .
In Santosky, the Supreme Court held that due process requires a finding of parental
unfitness be supported by a minimum of clear and convincing evidence to terminate parental
rights 20 . The court emphasized that a child could not initially be removed from parental custody
under section 361, subdivision (b) except upon a showing by clear and convincing evidence that
one of the circumstances justifying removal existed and that there were a series of hearings
involving ongoing reunification efforts at which a statutory presumption that the child should be
returned to the custody of the parent applied (§§ 366.21, subds. (e) & (f), 366.22, subd. (a)) 21 .
In the instant action, the Plaintiff did not present a prima facie evidence of physical
injuries. Therefore, the plaintiff did not meet their burden of proof and did not state a claim upon
which the court may take jurisdiction 22 .
CONCLUSION
For the foregoing reasons, Plaintiff respectfully submits that it is in the best interest of the
minors as well as in the interest of justice that the Court enters an order of acknowledgement,
terminating its jurisdiction over this case and dismissing the petition because it is no longer
necessary to protect the children. Plaintiff also prays for such other and further relief that this
court deems just and proper.
18 In re. Marquis D., 38 Cal.App.4th 1813 (1995). See also, In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146
Cal.Rptr. 623, 579 P.2d 514; see also Santosky v. Kramer, supra, 455 U.S. at p. 753, 102 S.Ct. at p. 1394; Stanley
v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212–1213, 31 L.Ed.2d 551.
19 Santosky v. Kramer, supra, 455 U.S. at p. 756, 102 S.Ct. at p. 1396.
20 Id. at pp. 768–770, 102 S.Ct. at 1402–1404.
21 Cynthia D. v. Superior Court, 5 Cal.4th at p. 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.
22 Ibid, (b)(1)
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DEFENDANT’S MOTION TO DISMISS
DATED: _ October 2021.
Respectfully submitted,
MELODY J. RODGERS
Defendant
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DEFENDANT’S MOTION TO DISMISS
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], a copy of the foregoing Motion has been sent
to the Plaintiffs in the following address:
Los Angeles Department of Child and Family Services
5110 Goldleaf Cir, Los Angeles, CA 90056
Childrens Law Center of California
101 Centre Plaza Dr, Monterey Park, CA 91754
Edelmen Children’s Court
201 Centre Plaza Dr, Monterey Park, CA 91754
MELODY J. RODGERS
Defendant
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DEFENDANT’S MOTION TO DISMISS
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