DEFENDANT’S MOTION TO TERMINATE THE COURT’S JURISDICTION AND TO DISMISS THE CASE

XXX

XXX CHILDREN COURT

XXX COUNTY

XXX
XXX DEPARTMENT OF CHILD AND FAMILY SERVICES, et al. 

                        PLAINTIFFS,

vs.

XXX

 Case No.: 

DEFENDANT’S MOTION TO TERMINATE THE COURT’S JURISDICTION AND TO DISMISS THE CASE

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.

 

                                                        TABLE OF CONTENTS

LEGAL ARGUMENTS 3

 

  1. PLAINTIFF(S) FILED AN UNVERIFIED PETITION AND FAILED TO PROVIDE ADEQUATE NOTICE 3

 

  1. THE COURT LACKS JURISDICTION OVER THE CHILDREN 4

 

III. THE CASE IS BEYOND THE STATUTORY LIMITATION PERIOD 6

 

  1. 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

 

                      

 

                            LEGAL ARGUMENTS

  • PLAINTIFF(S) FILED AN UNVERIFIED PETITION AND FAILED TO PROVIDE ADEQUATE NOTICE

  • 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”. 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.” 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.

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. Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it. 

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.

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. 

  • 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.” (Emphasis added). 

“In juvenile proceedings, verified pleadings are required to invoke the jurisdiction of the court over the subject matter.”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. 

 

  • 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”. 

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. The court must therefore take whatever appropriate action is necessary to fully protect the interests of the minor. 

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: 

  1. Petitioners failed to file a verified Petition;
  2. Petitioners failed to properly notify Defendant;
  3. The children have asked the Court to terminate jurisdiction.
  4. Petitioner lacks sufficient evidence to classify the children as Dependents of the Court. 

 

  • THE CASE IS BEYOND THE STATUTORY LIMITATION PERIOD

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. 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. 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”. 

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.   

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. 

  • 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’. 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”.

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.

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.  

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.  

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.  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)).

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.

                                      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.

 

DATED: _______ XXX.

 

Respectfully submitted,

 

                                                                                                

              

 

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:

 

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