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Saturday, December 26, 2009

Due Process ~ Two Simple Words ~One Great Idea

According to my favorite source, Wikipedia, here is a worldly definition:

Due process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.

Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This interpretation has often proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions. It is also stated that the government shall not be unfair to the people.

But here is an Effort by some in California to propose:

So click on this, or read the proposal. If you are in California, your help is needed. If you are not in California, take the examples to your state and start your own proposal for your state's
"Parental Due Process Act"

A BILL
To protect the fundamental due process rights of a parent in proceedings to terminate parental rights.

SECTION 1. SHORT TITLE.
This shall be cited as the “Parental Due Process Act.”

SECTION 2. FINDINGS AND PURPOSES.
(a) FINDINGS- the legislature finds that--

(1) Parental rights are so fundamental to the human condition so as to be deemed inalienable. Termination of parental rights equals or exceeds the detriment of criminal sanctions.
(2) The “liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests” recognized by the U.S. Supreme Court. Troxel v. Granville, 527 U.S. 1069 (1999). Moreover, the companionship, care, custody, and management of a parent over his or her child is an interest far more precious than any property right. May v. Anderson, 345 U.S. 528, 533, (1952). As such, the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. 645 (1972).
(3) State and local family services, child protective agencies, and courts have not recognized the rights of parents as inalienable, and, as a result, have failed to provide fundamental due process rights in the investigation and legal proceedings to determine abuse, neglect, and the termination of parental rights.

(b) PURPOSE- The purpose of this Act is to provide core fundamental due process rights to parents whose parental rights are subject to termination.


SECTION 3. DEFINITIONS.

As used in this Act:

(1) “Hearing” means any judicial or administrative hearing;
(2) “law enforcement officer” means an employee, the duties of whose position are primarily the prevention, investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws, including an employee engaged in this activity who is transferred to a supervisory or administrative position, or serving as a probation or pretrial services officer;
(3) “agency” means any state or local government;
(4) “Duress” consists of:

a. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife;
b. Unlawful detention of the property of any such person; or,
c. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.

(5) “Actual fraud” consists of any of the following acts, committed by a party, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into an agreement or to rely upon it to his detriment:

a. The suggestion, as a fact, of that which is not true by one who does not believe it to be true;
b. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
c. The suppression of that which is true, by one having knowledge or belief of the fact;
d. A promise made without any intention of performing it; or,
e. Any other act fitted to deceive.

(6) “Undue influence” consists of:

a. In the use, by one in whom a confidence is reposed by another,
or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair
advantage over him;
b. In taking an unfair advantage of another's weakness of mind; or,
c. In taking a grossly oppressive and unfair advantage of another's necessities or distress.

(7) “Malice" means conduct that is intended by the person to cause injury or despicable conduct that is carried out with a willful and conscious disregard of the rights or safety of others;

(8) “Emergency” means exigent circumstances in which immediate action is required to prevent the imminent physical injury or death of a child.


SECTION 4. HEARINGS OPEN TO THE PUBLIC.

(a) Upon the request of a parent, guardian or custodian, the right to have proceedings open to the public shall be guaranteed in the following circumstances:

(1) any hearing for the purpose of terminating parental rights;
(2) any hearing for the purpose of determining if a child is or has been deprived.

(b) Notwithstanding subsection (a), a judge may, upon consideration of written motion and papers filed in opposition, exclude the public if it is determined, by a preponderance of the evidence, that the safety of the child would be in jeopardy by a public hearing.

If the public is excluded from the hearing, the following people may attend the
closed hearing unless the judge finds it is not in the best interests of the child:

(i) the child's relatives;
(ii) the child's foster parents, if the child resides in foster care; and,
(iii) any person requested by the parent.

SECTION 5. TRIAL BY JURY

Upon the request of a parent, guardian or custodian, the right to a trial by jury shall be guaranteed in the following circumstances:

(1) any hearing to terminate parental rights;
(2) any hearing to determine if a child is or has been deprived.


SECTION 6. RELIGIOUS/CULTURAL/MORAL/ETHNIC VALUES AND BELIEFS OF PARENTS

In placing the legal custody or guardianship of a child with an individual or a private agency, a court shall take into consideration the religious, cultural, moral and ethnic values of the child or of his/her parents, if such values are known or ascertainable by the exercise of reasonable care.

SECTION 7. ELECTRONIC OR DIGITAL RECORDING OF INTERVIEWS

Except in the case of an emergency, any law enforcement officer, agent or employee for a state’s health and welfare department or child protective services, or mental health professional, who interviews a child for the purposes of investigation, shall electronically and/or digitally cause to be made an audio and visual recording of all questioning of, and interviews with, children. All recordings made pursuant to subsection (a) shall be made available to the parent, guardian or custodian of a child not later than ten days prior to any hearing to terminate parental rights or to determine if a child is or has been deprived.


SECTION 8. EVIDENCE IN FACT-FINDING HEARINGS

(a) Only evidence that is competent, material and relevant may be admitted in a
fact-finding hearing.
(b) Any determination at the conclusion of a fact-finding hearing that
a respondent did an act or acts must be based on proof beyond a
reasonable doubt. For this purpose, an uncorroborated confession made
out of court by a respondent is not sufficient.


SECTION 9. RIGHT TO A SPEEDY TRIAL

(a) In that removal of a child from a home for even brief periods is an extreme hardship on families, upon the request of a parent, guardian or custodian, the right to a speedy trial shall be guaranteed in the following circumstances:

(1) any hearing to terminate parental rights;
(2) any hearing to determine if a child is or has been deprived.

(b) A hearing, as described in subsection a, shall be conducted within thirty days of any type of removal of a child. In the event that the thirtieth day falls on a legal holiday or other day when the court is not in session, the hearing shall be conducted prior to the thirtieth day. In no event shall a hearing be conducted beyond the thirtieth day after the removal of a child if the right to a speedy trial has been exercised.

SECTION 10. WAIVER OF RIGHTS
The rights of a parent or guardian as described in this Act cannot be waived, neither can parental rights be terminated, if said waiver is due to:

(1) mistake;
(2) fraud;
(3) undue influence; or
(4) duress.


SECTION 11. IMMUNITY

(a) Notwithstanding any other provision of law, the civil immunity of juvenile court social workers, agents or employees of a health and welfare department or child protective services or law enforcement official authorized to initiate or conduct investigations or proceedings shall not extend to any of the following:

(1) Perjury;
(2) Fabrication of evidence;
(3) Failure to disclose known exculpatory evidence;
(4) Obtaining testimony by duress, fraud, or undue influence.

(b) Notwithstanding any other provision of law, any prosecutor, investigator, agent or employee of a state’s health and welfare department or child protective services who induces a parent to waive any of his or her rights under this Act by

(1) fraud;
(2) undue influence; or
(3) duress shall be subject to civil liability.


SECTION 12. DAMAGES
In the case of a determination by a court or jury of any violation of a parent’s rights under this Act, damages shall be presumed.

SECTION 13. ATTORNEYS FEES
Subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988 (b) and (c)) (concerning the award of attorney's and expert fees) shall apply to cases brought or defended under this Act.

SECTION 14. SEVERABILITY
If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected.

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This is an effort in the State of California to have the model legislation (below) passed in an effort to ensure Parental Due Process in the Juvenile Dependency Courts.

The model legislation was written by a team of attorneys at Pacific Justice Institute http://www.pacificjustice.org/ in Sacramento California.

Anyone wishing to get involved and/or support this legislation please contact Greg Smart at cpsvictim@gmail.com


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May YOU find Strength in YOUR Higher Power,
GranPa Chuck
Never Give Up
PS: I am not a Lawyer. Just an ol'guy who has shared many experiences.
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