JUVENILE RULE 2 RULES RELATING TO DEPENDENCY
- A. DE FACTO PARENTS / RELATIONS / INTERESTED PERSONS
- B. MOTION TO CHALLENGE LEGAL SUFFICIENCY OF PETITION
- C. PRESENTATION OF EVIDENCE
- D. REPRESENTATION OF PARTIES (W & I Code §§317, 317.6, CRC 5.660)
- E. ACCESS TO MINORS PETITIONED PURSUANT TO W & I CODE §300
- F. CREATION OF A FAMILY COURT ORDER IN JUVENILE COURT
- G. GUARDIANS AD LITEM
- H. PARENTAL VISITATION
- I. JUDICIALLY SUPERVISED SETTLEMENT CONFERENCES AND LONG CAUSE TRIALS
- J. DEPENDENCY MEDIATION
- K. COURT ORDERED MENTAL HEALTH EVALUATION
(1) DE FACTO PARENTS
Upon a sufficient showing the Court may recognize the child’s present or previous custodians as de facto parents and grant standing to participate as parties in dispositional hearings and any hearings thereafter at which the status of the dependent child is at issue. The person seeking de facto parent status shall file a noticed motion before the Court setting out the reasons in support of the motion, unless the Court shall for good cause permit an oral motion to be made. (Judicial Council forms JV-295 - JV-298 .)
The de facto parent shall have the rights outlined in CRC 5.534(e). The de facto parents shall be able to have access to and inspect and copy only those juvenile court records authorized by the Court.
In any dependency proceeding the Court may entertain a pre-hearing challenge to the petition’s sufficiency by a motion akin to a demurrer. Such a motion may be made in writing or orally, but must be made as early in the proceedings as possible. The Court may rule on the motion at the hearing at which it is made, or may continue the hearing on the motion to another date in order to receive points and authorities from counsel. If the Court sustains the motion, the Court may grant leave to amend the pleading in the petition upon any terms as may be just and shall fix the time within which the amendment or amended petition shall be filed within the statutory time for the hearing on jurisdiction. In re Fred J. (1979) 89 Cal.App.3d 168 CCP 472(a).
(1) OFFERS OF PROOF The party presenting evidence may utilize an offer of proof with regard to any witness. Other parties shall have an opportunity to examine the witness after any offer of proof is made.
(1) EXPERIENCE, TRAINING AND EDUCATION OF ATTORNEYS
a. GENERAL COMPETENCY REQUIREMENT
All court-appointed attorneys appearing in juvenile dependency proceedings must meet the minimum standards of competence set forth in these rules.
b. STANDARDS OF EDUCATION AND TRAINING
i. Each court-appointed attorney appearing in a dependency matter before the Juvenile Court shall complete the following minimum training and educational requirements. The attorney shall have either:
- Participated in at least 36 hours of training and education in juvenile dependency law and practice, which training shall have included comprehensive information on 202, 213.5, 214, 241.1, 281.5, 300 et seq.; Family Code § 7900 et seq. (Interstate Compact), and §§ 7600 et seq. (Uniform Parentage Act); Education Code §§ 5000 et seq. (Special Education Programs); 8 United States Code (USC) § 1101 (Special Immigrant Status for Undocumented Dependent Children), 25 USC §§ 1901 et seq. (Indian Child Welfare Act), 28 USC § 1738 (Parental Kidnapping Prevention Act), and 42 USC §§ 620 et seq. and 670 et seq. (Adoption and Safe Families Act); the California Rules of Court, Local Rules of Court, the rules of evidence as set forth in the California Evidence Code, and the applicable case law as well as practical training on Judicial Council forms, motions, writs and mediation, family group conferencing, team decision making, the Family to Family initiative, domestic violence projects (the Greenbook Project, for example), child development, child abuse and neglect, family reunification and preservation, restraining orders, rights of de facto parents, reasonable efforts,
- At least 6 months of experience within the last 12 months in dependency proceedings in another county in which the attorney has had primary responsibility for representation of his or her clients in said proceedings. In determining whether the attorney has demonstrated competence, the Court shall consider whether the attorney’s performance has substantially complied with the requirements of these rules.
ii. Each court-appointed attorney who practices before the Juvenile Dependency Court shall complete within every one year period at least 12 hours of continuing education related to dependency proceedings. Evidence of completion of the required number of hours of training or education shall be retained by the attorney and may include a copy of a certificate of attendance issued by a California MCLE provider or a certificate of attendance issued by a professional organization which provides training and/or education for its members, whether or not it is a MCLE provider. Attendance at a Court sponsored or approved program will also fulfill this requirement.
iii. The attorney’s continuing training or education shall be in the areas set forth in subdivision i of this rule (immediately above).
iv. To enhance the practice of law before the Juvenile Dependency Court of this County, and to recognize the unique qualities of juvenile dependency law, a standing committee of the Juvenile Court shall review and recommend modifications to these rules in the areas of training, education and standards of representation.
c. STANDARDS OF REPRESENTATION
All court-appointed attorneys appearing in dependency proceedings shall meet the following minimum standards of representation:
i. Attorneys are expected to meet regularly with clients, including clients who are children, to contact social workers and other professionals associated with the client’s case, to work with other counsel and the Court to resolve disputed aspects of a case without hearing, and to adhere to the mandated time lines.
ii. If the client is a child, the attorney or attorney’s agent should have contact with the client prior to each hearing. The attorney or attorney’s agent shall interview all children 4 years of age or older in person unless it is impracticable. Whenever possible, the child shall be interviewed at the child’s placement. The attorney or attorney’s agent should also interview the child’s caretaker, particularly when the child is under 4 years of age.
iii. If the client is not the child, the attorney or attorney’s agent shall interview the client at least once prior to the jurisdictional hearing unless that client is unavailable. Thereafter, the attorney or the attorney’s agent shall contact the client at least once prior to each hearing unless that client is unavailable.
d. COST FOR APPOINTED COUNSEL
Pursuant to WIC 903.l, a parent/guardian or person responsible for support of a minor is liable for the costs of appointed counsel for a parent/guardian and minor in Dependency Court. For each matter before the Court the parent/guardian shall fill out the Acknowledgement re Right to Counsel form (JV-2022 ). If applicable, the parent/guardian shall also fill out the Advisement and Waiver of Right to Counsel (JV-2023 ). At a financial hearing, the judge shall assess the repayment amount after a review of the Financial Declaration (JV-2020 ). An Order on Assessment and Repayment of Attorney Fees (JV-2021 ) shall be prepared and served on the responsible party and appointed counsel at the conclusion of a financial hearing.
a. Any party to a juvenile proceeding may lodge a written complaint with the Court concerning the performance of his/her appointed attorney in a Juvenile Court proceeding as follows:
i. Complaints or questions shall initially be referred to that attorney’s supervisor within the agency, association or law firm appointed to represent the client. ii. If the issue remains unresolved or if there is no designated agency, association or law firm, the party may submit a written complaint to the Court in which the matter is pending. The Court shall within 10 days conduct its own review of the complaint or question. That review may include a hearing in chambers. The Court may take any appropriate action required, including relieving counsel and appointing new counsel and/or holding a formal hearing on the matter.
b. In the case of a complaint concerning the performance of an attorney appointed to represent a minor, the complaint may be lodged by the child or on the child’s behalf by the social worker, a caretaker, a relative, a foster parent, or a child’s advocate.
(3) INFORMING THE COURT OF THE INTEREST OF THE CHILD
At any time during the pendency of a dependency proceeding, any interested person may notify the Court that the minor who is the subject of the proceeding may have an interest or right that needs to be protected or pursued.
a. This may be done by filing a petition to modify a previous order, under Welfare and Institutions (W & I) Code § 388 (Judicial Council form JV-180 ). The petition or affidavit shall set forth the nature of the interest or right to be protected and the action on the child’s behalf that is being requested.
b. If counsel for the child becomes aware that the child may have a right or interest that needs to be protected or pursued in another judicial or administrative forum, counsel for the child shall notify the Court in the manner indicated above as soon as it is reasonably possible to do so.
c. The Court upon receiving such notification may make any orders that are appropriate to protect the rights of the child, including, but not limited to:
i. Determining if the child’s attorney is willing and able to pursue the matter on the child’s behalf. If the Court finds that the child’s attorney is willing and qualified to initiate and pursue appropriate action, it may make any orders necessary to facilitate this representation;
ii. Appoint counsel for the child specializing in the practice before the agency or Court in which the proceeding will occur.
iii. Appoint a guardian ad litem for the child to initiate or pursue the proposed action;
iv. Join an administrative agency to the Juvenile Court proceedings pursuant to W & I Code § 362;
v. Take any other action to protect the interest and rights of the child.
d. The person filing the W & I Code § 388 petition or an Application for Order and Order re Interest of the Child shall serve a copy of the notice on each of the parties or their attorneys, the child advocate and others as prescribed by law. Notice may be dispensed with upon Order of the Court.
No party or attorney (other than the social worker) in a dependency proceeding shall interview the minor about the events relating to the allegations in the petition(s) on file without permission of the minor’s attorney or Court order.
No party or attorney in a dependency proceeding shall cause the minor to undergo a physical, medical or mental health examination or evaluation except as authorized by law.
The Court shall make the selection of the person to perform any such examination. Each party shall have the right to notice and to be heard on the person to be selected.
(1) INTERVIEWING MINORS WHO ARE ALLEGED VICTIMS OF CHILD ABUSE
All dependency investigators in the Probation Department and the Department of Family and Children’s Services, all attorneys representing parties in a dependency case in which child abuse has been alleged and other participants in the case, including a child advocate, shall attempt to minimize the number of interviews they take of the minor relating to the events surrounding the alleged abuse. To this end anyone wishing to learn facts about the alleged incident shall first review the comprehensive interview taken by the investigating officer.
(2) PRESENCE OF CHILD IN COURT
All children are entitled to attend Court hearings. Every child four years or older shall be told of his or her right to attend Court hearings by the investigating/supervising social worker and attorney for the child.
All children are entitled and encouraged to come to Court. However, their appearance may be excused for any of the following reasons:
a. the minor’s attorney waives the minor’s appearance;
b. the minor chooses not to attend;
c. the minor is excused by the Court;
d. the child is hospitalized or physically unable to attend.
If the child is present, the judicial officer hearing the case may view and speak with the child.
(3) NOTICE RE CHANGE IN PLACEMENT
In order to ensure that proper notice is received by attorneys for parents and children of any change in a child’s placement after the original dispositional hearing:
a. In non-emergency situations, the Department shall give notice at least five working days prior to the change in placement.
b. Prior to removal of a child from one county to another, the Department shall provide notice at least 14 calendar days unless emergency circumstances prevent such notice.
c. In emergency circumstances the Department shall give notice immediately following the child’s change in placement.
d. Notice may be given in writing or orally and by telephone.
(1) PETITION FOR DISMISSAL
Whenever any interested party believes that Juvenile Court intervention on behalf of a child is no longer necessary, application may be made to the Juvenile Court pursuant to W & I Code § 388 or at any regularly scheduled hearing to have the case dismissed.
Requests to modify the juvenile custody order within one year of the dismissal of the juvenile petition and the issuance of the custodial order on Judicial Council Form JV-200, shall be returned to the issuing juvenile judge for hearing to ensure there is a significant change in circumstances to warrant modification of that order as set forth in Welfare and Institutions Code § 302(d). The juvenile judge shall sit as a family judge for purposes of hearing the motions regarding modification of custody and/or visitation. Thereafter, any future litigation relating to the custody, visitation and control of the child shall be heard in the Family Court.
(2) JUVENILE COURT CUSTODIAL ORDER
If the Juvenile Court determines that jurisdiction of the Juvenile Court is no longer necessary for the protection of the child, the Court may create a custodial order on Judicial Council Form JV-200 consistent with the needs of the child and thereafter dismiss the juvenile petition and case (W & I Code §§ 361.2, 362.4). Any party may object to the proposed dismissal and be heard on the issues.
(3) MAINTENANCE OF ORDERS IN COURT FILES
a. JUVENILE COURT
The original Court order shall be filed in the Family Court or civil file and endorsed copies shall be filed in the Juvenile Court file. A copy of the endorsed-filed order shall be mailed to the attorneys and parties.
b. SUPERIOR COURT
If no Court file exists in the Family Court or other Superior Court division or in any other jurisdiction, the Court Clerk shall create a file under the names of the child’s parents. The file shall contain a copy of the Juvenile Court order. There shall be no filing fee. W & I Code section 362.4.
(1) FOR PARENTS
a. The Court shall appoint a guardian ad litem to represent any incompetent parent or guardian whose child is before the Juvenile Court pursuant to a dependency petition (W & I §§ 300 et seq.). The determination of incompetency may be made by the Court at any time in the proceeding based upon evidence received from any interested party.
b. The parent or guardian must be present in Court for the informal closed proceeding, and the Court must explain the proceeding to the parent or guardian in plain language. If the Court finds by a preponderance of the evidence that the parent or guardian does not understand the nature or consequences of the proceeding, or that the parent or guardian cannot assist their attorney in the preparation of their case, then the Court shall appoint a guardian ad litem.
c. The guardian ad litem’s role is to protect the rights of the ward. He or she has the right to control the litigation on behalf of the ward. Among the guardian’s powers are the right to compromise or settle the action, to control the procedural steps incident to the conduct of the litigation, and, with the approval of the Court, to make stipulations or concessions that are binding on the ward, provided they are not prejudicial to the ward’s interests. The guardian ad litem’s role is more than an attorney’s but less than a party’s. The guardian ad litem may make tactical and even fundamental decisions affecting the litigation, but always with the interest of the ward in mind. However, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit.
(2) NOTICE TO GUARDIANS AD LITEM, ACCESS TO RECORDS, RIGHT TO APPEAR
a. In all proceedings the guardian ad litem shall be given the same notice as any party.
b. The guardian ad litem shall have the same access to all records relating to the case as would any party.
c. The guardian ad litem shall have the right to appear at all hearings.
(1) VISITATION BEFORE DETENTION HEARING
(a) Any child taken into temporary custody shall have supervised visitation with one or both parents or guardians before the detention hearing takes place unless the social worker has a reasonable belief that the child or his or her temporary custodian would be endangered by the disclosure of the child’s exact whereabouts or that the disclosure would cause the custody of the child to be disturbed (W & I § 308).
(b) Whenever a child is taken into temporary custody, the social worker shall inform the parent or guardian of the child’s condition and his or her general location and offer supervised visitation pursuant to subdivision a (immediately above).
(c) Immediately after a child is taken into temporary custody the social worker shall ensure that the child has regular telephone contact with his or her parent pursuant to W & I Code § 308, unless that contact would be detrimental to the child.
(d) If the social worker fails to follow the procedures listed in subdivision a (immediately above), he or she shall note the reasons therefore in the papers prepared for the detention hearing.
(2) VISITATION AFTER DETENTION HEARING
a. The determination of the right to visitation, the length of any visitation, whether any visitation will be supervised, and the frequency of visitation are a part of the judicial function and must be made by the Court. The implementation and administration of the Court’s order, however, may be delegated to the social worker. These ministerial tasks that may be delegated to the social worker include the time, place and manner of visitation. The Court may also delegate discretion to the social worker to increase the frequency and duration of the visits, and to permit unsupervised visits (sometimes with the explicit condition that the attorney for the minor be given notice). The Court’s order cannot, however, delegate to the social worker, the child’s therapist, or other person unlimited discretion to determine whether visitation shall occur.
b. Absent exigent circumstances indicating detriment to the child, only the Court may reduce visits for a parent. Juvenile Court visitation orders may be modified by an application for modification pursuant to W & I Code § 388 or by Application and Order, or by motion of a party at a regularly scheduled review hearing.
c. Visitation should be as frequent as possible, consistent with the well-being of the child.
(1) Where the Court has set a date for a judicially supervised settlement conference or a long cause trial, the child’s attorney shall interview the child, make an assessment of all relevant circumstances and determine whether the child will be called as a witness. The child’s attorney must advise the Court and the parties whether the child will be a witness no later than two court days before the date of the judicially supervised settlement conference or long cause trial.
(2) If the child is 10 years of age or older, the child’s attorney must inform the child of the date of the judicially supervised settlement conference or long cause trial and of the child’s right to attend the proceeding.
(3) If DFCS has changed any of its recommendations since it last provided the Court and parties with its recommendations, the DFCS must provide the Court and the parties with notice of its revised recommendations no later than three court days prior to the date of the judicially supervised settlement conference or long cause trial. The Court may waive this notice requirement upon a showing of good cause or agreement of the parties.
(4) Counsel, parties and persons with full authority to settle the case must personally attend the judicially supervised settlement conference and long cause trial. The child is encouraged to attend, but the child’s attendance is not required.
(1) The Court, pursuant to W & I Code § 350 and at any stage of the dependency court process, upon the request of any person who the Court deems to have a direct and legitimate interest in the particular case or on the Court’s own motion, will order all parties and counsel to participate in confidential mediation in an attempt to resolve jurisdictional and/or dispositional issues in dispute, or case related problems, and to develop a related plan that is in the best interests of the child.
(2) Dependency Mediators shall be either California Licensed Marriage and Family Therapists, Licensed Clinical Social Workers, or Licensed Psychologists employed by Santa Clara County Family Court Services who meet the training and experience requirements included within the current Santa Clara County Dependency Mediation Protocol & Dependency Mediation Domestic Violence Protocol, CRC 5.518, Court-connected dependency mediation.
(3) CALENDARING AND REFERRAL
a. The Court will calendar appointments for cases ordered to mediation with the Dependency Mediation Program, whenever possible scheduling cases expected to require extensive attorney participation for afternoon appointments and cases expected to require less attorney participation for morning appointments. The Court will, at the time of calendaring, attempt to identify all the individuals whose participation in mediation may be helpful in resolving the case so that their participation may be either ordered or invited as appropriate.
b. The Court will distribute Juvenile Dependency Court Mediation brochures to the parties at the time of referral.
c. The Court will complete the Dependency Mediation Referral form at the time of calendaring and referral, identifying the participants and issues referred to mediation. The Court will also indicate on that form whether domestic violence has ever been an issue in the case. The Court will also determine whether a Domestic Violence Protective Order is in effect, and if so, forward a copy of said order to the Dependency Mediation Program along with the referral. The Dependency Mediation brochure will include the procedural rights of domestic violence victims.
d. The Court will review the Court file and forward to the Dependency Mediation Program background information on the case in the form of copies of reports and documents related to child abuse and/or neglect and any history of domestic violence to assist the mediators in preparing for the case.
(4) The parties assigned Department of Family and Children’s Services social workers, all assigned counsel, and any Court Appointed Special Advocates must attend all scheduled mediation appointments. The subject child has a right to participate in the dependency mediation process accompanied by his or her attorney unless the child makes an informed choice not to participate.
a. Failure to attend mediation by the mandated participants may result in the imposition of sanctions pursuant to Code of Civil Procedure § 177.5.
(5) Upon the concurrence of the mediator(s) and counsel, other individuals will be permitted to participate in the mediation on a voluntary basis.
(6) Dependency Mediation in Santa Clara County is a confidential and non-recommending process operating in compliance with Chapter 2, §§ 1115 through 1128, of the Evidence Code of the State of California with the following exceptions to confidentiality: 1) Santa Clara County Dependency Mediators are mandatory child abuse reporters as defined within § 11166.5 of the Penal Code and have a duty to report in the event they develop a reasonable suspicion of child abuse not formerly reported; 2) Santa Clara County Dependency Mediators have a duty when confronted with serious threats of violence against reasonably identifiable victims to make reasonable efforts to communicate such threats to the victim or victims and to a law enforcement agency (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at pp.431, 438, 131 Cal. Rptr. 14, 551 P.2d 334); 3) It is the duty of mediators to disclose information otherwise as may be compelled by statute or case law.
(7) Dependency Mediation must be conducted in accordance with the Santa Clara County Dependency Mediation Protocol and Dependency Mediation Domestic Violence Protocol and CRC 5.518, Court-connected dependency mediation, and must involve, at a minimum, all the mandatory participants as defined in subdivision (4) above at various stages throughout the process.
a. All mandatory mediation participants and the mediators must appear on time for all scheduled mediation appointments.
b. Dependency Mediators must make every reasonable effort to release the attorneys involved in mediation during the middle stages of the process, consistent with their clients’ need to consult with them during the course of mediation, so that the attorneys may make themselves available to the court and facilitate the conducting of court business in the most efficient manner possible.
c. Dependency Mediators must make every reasonable attempt to insure that morning mediation appointments are completed no later than 11:30 a.m., and that afternoon mediation appointments are completed no later than 4:30 p.m., so that the parties and attorneys may report back to the court in a timely manner.
d. Each area of agreement resulting from mediation must be approved by all the mandatory participants including the family members who are parties, the assigned DFCS Social Worker, all the involved attorneys, and any participating Court Appointment Special Advocate.
e. The attorney from the Office of the County Counsel assigned to represent the assigned social worker from the Department of Family and Children’s Services will be responsible for recording all aspects of any partial or complete agreement, and for recording any areas of remaining disagreement.
f. Immediately upon completion of the mediation appointment, all the mandatory participants may proceed to Court. The attorney from the Office of the County Counsel will report to the Court the exact nature of any areas of agreement and/or disagreement, and/or any request for an additional mediation appointment. The Court will take whatever action is deemed necessary to confirm the nature of agreement/disagreement with the parties and attorneys, and to assure itself that all parties and attorneys understand the nature of any agreement. The Court must also approve/disapprove any request for an additional mediation appointment, and if approved, calendar the return appointment.
g. The Court must review the proposed agreement and determine whether to approve any portion or all of it. The Court must make any orders and/or findings deemed appropriate. The Court must determine any necessary subsequent action including trial setting.
h. The attorney representing the Office of the County Counsel will be responsible for preparing any orders made by the Court related to the mediated agreement. The attorney from the Office of the County Counsel shall complete the Dependency Mediation Outcome Form (JV-2029) and return the form to the mediator.
Where the Court has ordered a mental health or psychological evaluation, the Court shall determine what Court reports and other information shall be released to the evaluator.