Name:
In
Pro Per,
Address:
Phone:
SUPERIOR COURT FOR THE STATE
OF
Name: , In Pro PerDefendant, And SUPERIOR COURT OF Real Party at Interest, |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )))) |
MOTION ANDORDER TO DISMISS
PURSUANT TO W&I SECT. 300 |
I
I ____________________ am
the defendant in this matter and the mother of the above named minor. I hear by move the court to dismiss the above
entitled matter based on the following:
FAILURE OF THE PETITIONER
AND THE COURT TO RECOGNIZE CIRCUMSTANCES WHICH LED TO DETENTION WERE ALREADY
MITIGATED AND ALLEVIATED
At the time the minor _____________ was detained on an
emergency petition by DFCS Social Worker, ______________, Ms. ___________
submitted “A Declaration of Reasonable efforts Detention Report” (sc
1554). In this report in Section 3,
under Efforts to Prevent Removal, “None due to the Emergency of the referral “. The petitioner clearly failed to recognize
her efforts as well as the Defendants.
In fact, at the time ___________ was detained, all circumstances which
led to the removal. The question here is a matter of fact and law. At the time the aforementioned minor was
detained, the petitioner based her allegations on W&I 300 sec (b), (d), and
(j) which in fact had no base or foundation at the time of detention.
Because of
the aforementioned and the fact that all circumstances that led to the
detention of _____________were mitigated prior and up to the time of detention,
it is clearly shown that the petitioner in this matter did not and continues
not to meet the mandated requirements of the Manual of Policy and Procedures
pursuant to Title 22 Division 31 CCR 31-084 Manual of Policies and Procedures
(CDSS MPP) et Seq. and the DHHS (U.S. Department of Health & Human
Services) “Social Workers Hand Book” under “Child Welfare Services
Investigation & Assessments”, W&I section 300 (b), (d),and (j), 361 et Seq. 42 U.S.C. 622 et Seq and 625.
Further, these State Plan Mandates “Provides that the plan shall be in effect
in all political subdivisions of the State and, if administered by them, be
mandatory upon them” see Suter v. Artist M., 503 U.S. 347 (1992), U.S. Supreme
Court.
Based on the
aforementioned and the evidence so produced, to detain ________________ at the
aforementioned detention hearing is seriously questionable. The petitioner has not met the evidence
standard of “clear and convincing”.
Therefore, based upon the forgoing, the matter of _____________ should
be dismissed based upon the failure to meet the requirements (b), (d) and (j).
III
CONCLUSIONS
The juvenile
court’s findings at detention were based upon the petitions W&I Code 300
(b), (d) and (j). Subdivision (b)
provides for jurisdiction where “[t]he minor has suffered, or there is a
substantial risk that the minor will suffer, serious physical harm or illness,
as a result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the minor, or the willful or negligent failure
of the minor’s parent or guardian to adequately supervise or protect the minor
from the conduct of the custodian with whom the minor has been left, or by the
willful or negligent failure of the parent or guardian to provide the minor
with adequate food, clothing, shelter, or medical treatment, or by the
inability of the parent or guardian to provide regular care for the minor due
to the parent’s or guardian’s mental illness, developmental disability, or
substance abuse.” Therefore, because of
the aforementioned, the petitioner in this matter should have reasonability
known the circumstances that brought the detention of said minor’s 3 half
siblings were mitigated and this situation in fact did NOT exist as the three older minors were not residing in
the home at the time of _____________’s detention.
The
difficultly with the evidence adduced in support of the detention/jurisdiction
is apparent when we return, as we must, to the words of the statute. “Subdivision (b) means what it says. Before courts and agencies can exert
detention/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.” (Emphasis
in orig.} (In re Rocco M. (1991) 1 Cal. App. 4th 814, 823.) Moreover, although evidence of past conduct
may be “probative of current condition,” the primary issue is whether
“circumstances at the time of the hearing subject the minor to the defined risk
of harm” (Emphasis in Orig.) (
There is no
evidence that said minor ever suffered any physical harm in the defendant’s custody
and there is no evidence that the defendant put said minor at substantial risk
of suffering serious physical or emotional harm.
The only
conclusion the evidence now present and present at detention is insufficient to
support a finding of detention based on the clear and convincing standard or
even at jurisdiction under the preponderance standard under subdivision b of
section 300.
Pursuant to
W&I Section 300 (d) :“The minor has been sexually abused, or there is a
substantial risk, that the minor will be sexually abused, as defined in
section 11165.1 of the Penal Code, by his or her parent or guardian or a member
of his or her household, or the parent of guardian has failed to adequately
protect the minor from sexual abuse when the parent or guardian knew or
reasonably should have know that the minor was in danger of sexual abuse.” Here again the aforementioned medical reports
show that the minor _________________ was clearly not sexually abused, nor was
she abused in any other way.
IV
REQUEST FOR ORDER
Based on the
foregoing I, ____________ hereby moves the above entitled court to order a
dismissal in the matter of ________________ and that the court order DFCS to
return this said minor to the care, custody and control of the defendant and
this be ordered forthwith.
V
DECLARATION
I, __________
am the defendant in the above entitled matter, I am over the age of twenty one,
I am a citizen of the
Executed on
this ________ day of _____________, 20___.
Executed in the state of
__________________________________________
Name: _________________, Defendant
In Pro Per