Name: _________

In Pro Per,

Address:

 

 

Phone:

 

HONERABLE ____________________

______________________________
 
 


SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF __________________

JUVENILE DIVISION

 

 

 

Name: _______________________,

     Defendant,

     and

____________________ County Department of Social Services, Department of Family and Children Services

     Real Party at

     Interest

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Child Name, Case #, DOB

 

 

 

 

 

 

 

 

 

WIC §388 MOTION

MODIFICATION OF ORDERS AND

FINDINGS, NEW EVIDENCE

IN PRO PER

 

 

I

INTRODUCTION

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. [California Rules of Court [2], rule 1432, In re Marilyn H., 5 Cal.4th 295] and parent need only make prima facie showing to trigger right to full hearing on petition. In re Michael D.(App. 2 Dist. 1996) 59 Cal.Rptr.2d 575, 51 Cal.App.4th 1074.

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.

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By concealing facts and withholding exculpatory evidence, the social worker(s) breached their duty of disclosure, perpetrating a fraud upon the court as well as the minors.  In the jurisdictional report and subsequent reports, the social worker(s) manipulated statements and facts to further the appearance that the petitioner seemed to not avail herself or even access any services.

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. 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.]

B THE BEST INTERESTS OF THE CHILDREN

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. Equally important here, with respect to the above noted interests, the Marisol court found for obvious reasons that the failure to conduct a proper investigation resulting in the improper or unwarranted removal of a child from parental custody has the same effect. There can be no distinction here, relative to the interests of the child, between the failure to investigate and failure to act on the findings of an investigation, withholding these findings from the court, and in this case the setting of a §366.26 permanency planning hearing where petitioners parental rights may be terminated.

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].

C CONCLUSION

     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 without the requirement of petitioner leaving her home or her stable relationship.  The petitioner requests that the court modify and or create orders that will stop the actions of Social Services based upon their conspiratorial lies and allegations with county counsel and in the very least, order continued reunification services. 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.  The inaction of the petitioners’ attorney is not in the petitioners’ best interests and the shared interests with her children. 

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 Santa Clara.

 

Dated this _____ day of ___________, 20____

 

Signed: _________________________________


[1] All statutory references are California Welfare and Institutions code unless otherwise stated.

[2] California Rules of Court unless otherwise noted.