Name: _________
In Pro Per,
Address:
Phone:
SUPERIOR COURT
FOR THE STATE OF
JUVENILE
DIVISION
|
Name:
_______________________, Defendant, and ____________________
County Department of Social Services, Department of Family and Children
Services Real Party at Interest |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
WIC §388 MOTION MODIFICATION OF ORDERS AND FINDINGS, NEW EVIDENCE REQUEST FOR COURT ORDER |
I
A Welfare and Institution Code section (§)388 petition is proper to “modify or set aside any order of the court previously made or to terminate the jurisdiction of the court…” Welfare and Institutions Code [1] §388. Dependency order of juvenile court may be modified if the petitioner shows change of circumstances or new evidence, which establishes that modification of prior order, is in the minor's best interests. Nahid H. v. Superior Court (App. 3 Dist. 1997) 62 Cal.Rptr.2d 281, 53 Cal.App.4th 1051, and it is always in the best interest of the child to have all interested parties participate, Ansley v Superior Court (1986, 2d Dist) 185 Cal App 3d 477, 229 Cal Rptr 771.
All
petitions must be liberally construed in favor of the petitioner, and is a
final safety net protecting familial relationships. [
As established below, this case is one where there is SUBSTANTIAL evidence, warranting an order of continuation of reunification services including proper review hearings pursuant to well established Law of the dependency scheme. Further, exists the need for the court to set aside findings and orders previously enacted through false allegations used by _______________county social workers to manipulate the court to create an aura that petitioner is unstable. Petitioner’s evidence of extrinsic fraudulent actions of county’s social worker’s warrant an order mandating the county cease and desist interfering with petitioners right to reunify with petitioner’s children and proper, factual assessments be completed.
The Court has the authority to modify orders and findings to support the petitioner’s family and it is necessary under the circumstances to stay these proceedings pending resolution of this petition.
II
RELEVANT FACTS/ISSUES
The following is a description of the changed conditions and relevant facts which will allow this court the information to modify it’s orders.
To achieve the goal of preserving the family whenever possible, the Legislature required the county child welfare departments to develop and implement family reunification plans and required the courts to monitor those plans through periodic reviews. Family reunification efforts are required to begin with the first determination the child will be detained in juvenile court custody. (§§319; 361.5,subd.(a).) Thereafter the courts must review the case at intervals of no less than six months and determine, among other things, whether reasonable reunification services have been offered. (§§366.21,subds.(e),(f),(g); 366.22, subd.(a).)
The petitioner, on behalf of her minor children, has first party standing to bring these issues before the court. See In re Caitlin B. (2000,78 Cal. App. 4th 1190) and In re Patricia E. (1985, 174 Cal.App. 3rd 1). The following are issues of change in circumstances or new evidence presented to this honorable court so that the court can return the child/children in their best interest/s. Exhibits shall be attached and labeled.
1.
2.
3.
4.
III.
CONCLUSIONS
AND REQUEST TO MODIFY ORDERS
AND
FINDINGS OF SUPERIOR COURT TO PROTECT THE
PETITIONERS
CHILDREN
A DISCUSSION
A §388 petition is the appropriate vehicle to address
the above concerns at this juncture in the proceedings. Social services and
their representatives should have presented the new evidence and change of
circumstances to this honorable court but have chosen to withhold the changes
and evidence as an act of fraud. All else aside, this is a clear
case of fraud perpetrated on the court, by the social worker and county
counsel, committed against the interests of the child and the petitioner. The
court always has inherent authority to set aside a judgment when the judgment
is a product of fraud and this is no less true in a dependency proceeding via a
§388 petition. [In re Olivia A. (1986) 181 Cal.App.3d 237; citing In re
Steven S. (1979) 91 Cal.App.3d 604; In re Corey (1964) 230 Cal.App.2d
813, 832; Stern v. Judson (1912) 163 Cal 736; Parsons v. Weis
(1904) 144 Call. 410; City of Los Angeles v. Morgan (1951) 105
Cal.App.2d 626, 730-731. see also Ansley
v. Superior Court (1986) 185
Cal.App.3d 477; In re Brendan P. (1986) 184 Cal.App.3d 910]
With
respect to the children, the fraud is extrinsic, based upon the social workers
willful withholding of exculpatory evidence, and the fiduciary relationship
between the child and the social worker in her capacity of guardian ad-litem. [See Estate of Sanders, 40 Cal.3d
607, 615; also see Estate of Shay
(1925) 196 Cal 355, 365; Martin v.
Martin (1952) 110 C.al.App.2d 228, 233; Main v. Merrill Lynch, Pierce,
Fenner, & Smith, Inc. (1977) 67 Cal.App.3d 1932; Stafford v. Schultz, (1954) 42 Cal.2d
766, 767.]
Section 388 requires a showing that the proposed modification of prior order meets the best interests of the child.
The child’s
interest as the key is to be protected from harm, inclusive of harm caused by
the agency. e.g., , Marisol A. by Forbes v. Giuliani, (S.D.N.Y. 1996) 929
F.Supp. 662], where the court found the child has a right to reasonable
duration and conditions of foster care, as elements of the right to be
protected from both physical and emotional harm, that the child has first
amendment rights of association with his or her biological family, all of which
are related and subject to substantive and procedural due process protections.
Petitioner may raise these issues as to petitioner’s child pursuant to rules
governing overlapping interests as a matter of first party standing [In re
Caitlin B. (2000) 78 Cal.App.4th 1190].
The petitioner has made a prima facie
showing to justify a § 388 hearing and has presented new evidence, which has
shows detriment to the petitioner’s children.
The evidence shows that in the best interest for the minor children of
this case, they should have the right to reunify with the petitioner. The
evidence in this petition shows the social workers’ assessments evaluations to
be based on fraud, lies and breaches in their duty of disclosure, therefore the
court should order new assessments to adequately evaluate the progress and needs
in this case to forward ALL FACTS and recommendations that are
actually in the best interest of the minors.
Based on
the foregoing the interests of the child requires the court to grant this
petition. In view of the facts, all other parties share the interests of the
child, and granting the petition is further necessary to avoid a miscarriage of
justice [Cal. Const., art. VI, 13].
IV
DECLARATION
I, _______________ am over the age of 18
years old and am a resident in California and am the petitioner in this matter
and declare that the foregoing is true and correct under penalty of perjury
under the laws of the state of California.
Executed at the state of California in the County of _________________.
Dated this
_____ day of ___________, 20____
Signed: _________________________________