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May 11, 2012, 07:03:00 PM
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When the agent starts saying you need to do this or that, your response might be:
"Mrs. Government Agent, I’m happy to do all that is asked of me by the court. Do you have a court order for the things you are asking?"
The agent might say, "No I don’t have a court order, but the court will require you to do the things I’m asking anyway and it will please the judge if you have them completed early."
By now, this person is likely someone that you greatly distrust. If the agent is anything like the norm, she’s already lied to you, misled you and broken several laws and procedures. Certainly you wouldn’t believe anything a person of this stature says without collaborating it first. Your response to the above statement might be:
"I'm thankful that you are trying to assist me in completing things you believe the court might require of me. I appreciate your concern. However, I wish to follow the legal channels set in place for matters such as these. I know the court will base requirements imposed on me on specific findings of abuse or neglect. I prefer to wait for my day in court to defend the allegations made against me rather than acting as a guilty person by complying with demands put on child abusers now. I'm confident the evidence will support my innocence and the court will be able to see through the allegations and not impose conditions on me intended for child abusers."
You do not need to take child rearing (parent training) classes or have a psychological evaluation until it is court ordered. It shouldn’t be court ordered until the court has adjudicated you guilty of abuse or neglect.
Sometimes, however, courts get in the habit of ordering all parents to complete child rearing classes, psychological evaluations and drug screens as part of the temporary orders. They believe it is an easy (and lazy) way of moving cases through the system more quickly.
However, federal courts have held that such restrictions can’t be imposed on parents without first finding that abuse or neglect did occur and second, finding some cause that the requirements are actually needed.
Even after abuse or neglect has been adjudicated; before a psychological evaluation can be ordered, there needs to be some justification for it, rather than simply ordering them for all parents.
The same applies to drug screens. There must be some reason to suspect drug use and it’s relationship to child abuse before a drug screen can be imposed. Likewise, there needs to be some judicial finding of parental unfitness before child rearing classes can be imposed.
If a Judge orders these things in the temporary orders in your case, you should object orally in open court while they are being ordered. Your response might be:
Your Honor, we object to these requirements being imposed without a judicial finding that creates a need for them.
The court is so accustomed to doing everything with a rubber-stamp and herding families through like cattle, that you’ll need to show them you’re a little different; you’re actually going to insist on compliance with the law.
The Judge may ignore your objection and impose the requirements anyway. If this happens, you should file an appeal to the state court of appeals. Contact an attorney or social services group for assistance in finding case law to use for the appeal.
If you aren’t in open court when the orders are made, but they are simply provided to you later, you’ll need to file a Motion to Reconsider with the court asking them to remove the restrictions imposed before you appeal. In other words, you need to give the Judge an opportunity to voluntarily rescind the orders before going to the appellate court.
Sometimes it may be to your advantage to voluntarily complete some things outside of a court order. If this is the case, it should be done completely on your own, because you want to or need to, and without the advice or assistance of the state agent.
As an example, if the state is alleging that you were "high" at the time the children were taken, you may want to rush to the hospital for a drug screen to prove you weren’t. Or the allegations might be that you are “often stoned” and leave the child to fend for himself. In this case, you might choose to get a drug evaluation to offer as evidence in your defense.
There might be an allegation that you are mentally unstable because your mother committed suicide or some other reason. You could choose to get a psychological evaluation to combat these accusations.
If you have an evaluation or take child rearing classes, either by court order or by choice, choose your own therapist. Do not go to the person the state agent recommends. When interviewing therapists or counselors, ask them if they contract with the state. If they do, go elsewhere. If you have reason to distrust the state, it doesn’t make much sense to trust those that do business with the state.
When choosing a therapist or counselor, question them closely to make certain they share or respect your closely-held convictions. If you are Christian, choose a Christian counselor or enroll in a Christian-based child rearing class. If you are a vegetarian, choose a counselor that will respect the choice you’ve made for your family. If you homeschool, chose a counselor that understands and respects homeschooling.
Do not sign a release of information for the state agent to speak with your therapist or obtain records. If you’ve gone voluntarily prior to a finding of abuse or neglect, you will bring the information to court with you to use in your defense. There’s no reason for the state agent to have it unless they have a court order.
If the agent has a court order for the information, it should be limited to the diagnosis or findings, not the entire file. The agent should not get a court order for the information prior to an adjudication of abuse or neglect. If such an order has been made, you’ll want to file a Motion to Reconsider or an appeal.
Be sure to get a clear order for visitation and not something like, “parents will get regular visits”. The order should outline exactly how often visits should occur and what type of restrictions will be imposed on them. If you don’t have a clear order, you can file a Motion to Clarify with the court.
In summary; before you do anything, require a court order. If you want something, seek a court order.
If the state fails to comply with any court order, you can file a Motion to Show Cause to hold the agency in contempt of court. If you disagree with an order, file a Motion to Reconsider or an appeal. If you’d like a court order explained more clearly, file a Motion to Clarify.
Motion to Reconsider
[Full Name], [plaintiff or defendant] in the above captioned cause, moves the court to reconsider its opinion and order in this cause dated [date].
Grounds for this motion are as follows:
[list]
WHEREFORE, [plaintiff or defendant]
respectfully moves the court to reconsider its opinion and order in this regard and to modify the order to reflect that [state fully the relief now sought].
Dated: _________.
[Signature]
Attach Certificate of Service and Notice of Hearing forms.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing was placed in the U.S. Mail, postage prepaid, on the _____ day of [month], [year], and properly addressed to:
(List all parties names and addresses.)
[Signature]
MOTION TO CLARIFY
[Court Heading and Caption. Should include the court name, plaintiffs and defendants and case number.]
COMES NOW, [full name], [father/mother/parents] of the above named minor child[ren], and moves this Court to clarify the language in the Journal Entry of [hearing], dated [date] in the following manner:
1. [quote]
An example:
1. The Journal Entry reads as follows:
"more frequent and monitored visits between mother and child will occur"
Movant requests that this language be clarified to include:
A. Exact days, times and locations the visits should occur.
B. Date visitation will commence.
WHEREFORE, movant prays for the relief as set forth above and for such other and further relief as the Court deems just and proper.
[Full Name & Address]
Motion for Order to Show Cause for Contempt
[Full Name], [Plaintiff or Defendant] in the above entitled matter, in pro per, respectfully moves this court that an order issue, citing and summoning [Agency Name] to appear and show cause, if any he has, why he should not be punished for contempt of court for having failed to comply with the provisions of the judgment heretofore entered, such judgment requiring [list].
This motion is made on the grounds that [specify grounds with particularity that indicate non-compliance].
WHEREFORE, [plaintiff or defendant] prays for the relief as set forth above and for such other and further relief as the court deems just and proper.
[Full Name & Address]
"Mrs. Government Agent, I’m happy to do all that is asked of me by the court. Do you have a court order for the things you are asking?"
The agent might say, "No I don’t have a court order, but the court will require you to do the things I’m asking anyway and it will please the judge if you have them completed early."
By now, this person is likely someone that you greatly distrust. If the agent is anything like the norm, she’s already lied to you, misled you and broken several laws and procedures. Certainly you wouldn’t believe anything a person of this stature says without collaborating it first. Your response to the above statement might be:
"I'm thankful that you are trying to assist me in completing things you believe the court might require of me. I appreciate your concern. However, I wish to follow the legal channels set in place for matters such as these. I know the court will base requirements imposed on me on specific findings of abuse or neglect. I prefer to wait for my day in court to defend the allegations made against me rather than acting as a guilty person by complying with demands put on child abusers now. I'm confident the evidence will support my innocence and the court will be able to see through the allegations and not impose conditions on me intended for child abusers."
You do not need to take child rearing (parent training) classes or have a psychological evaluation until it is court ordered. It shouldn’t be court ordered until the court has adjudicated you guilty of abuse or neglect.
Sometimes, however, courts get in the habit of ordering all parents to complete child rearing classes, psychological evaluations and drug screens as part of the temporary orders. They believe it is an easy (and lazy) way of moving cases through the system more quickly.
However, federal courts have held that such restrictions can’t be imposed on parents without first finding that abuse or neglect did occur and second, finding some cause that the requirements are actually needed.
Even after abuse or neglect has been adjudicated; before a psychological evaluation can be ordered, there needs to be some justification for it, rather than simply ordering them for all parents.
The same applies to drug screens. There must be some reason to suspect drug use and it’s relationship to child abuse before a drug screen can be imposed. Likewise, there needs to be some judicial finding of parental unfitness before child rearing classes can be imposed.
If a Judge orders these things in the temporary orders in your case, you should object orally in open court while they are being ordered. Your response might be:
Your Honor, we object to these requirements being imposed without a judicial finding that creates a need for them.
The court is so accustomed to doing everything with a rubber-stamp and herding families through like cattle, that you’ll need to show them you’re a little different; you’re actually going to insist on compliance with the law.
The Judge may ignore your objection and impose the requirements anyway. If this happens, you should file an appeal to the state court of appeals. Contact an attorney or social services group for assistance in finding case law to use for the appeal.
If you aren’t in open court when the orders are made, but they are simply provided to you later, you’ll need to file a Motion to Reconsider with the court asking them to remove the restrictions imposed before you appeal. In other words, you need to give the Judge an opportunity to voluntarily rescind the orders before going to the appellate court.
Sometimes it may be to your advantage to voluntarily complete some things outside of a court order. If this is the case, it should be done completely on your own, because you want to or need to, and without the advice or assistance of the state agent.
As an example, if the state is alleging that you were "high" at the time the children were taken, you may want to rush to the hospital for a drug screen to prove you weren’t. Or the allegations might be that you are “often stoned” and leave the child to fend for himself. In this case, you might choose to get a drug evaluation to offer as evidence in your defense.
There might be an allegation that you are mentally unstable because your mother committed suicide or some other reason. You could choose to get a psychological evaluation to combat these accusations.
If you have an evaluation or take child rearing classes, either by court order or by choice, choose your own therapist. Do not go to the person the state agent recommends. When interviewing therapists or counselors, ask them if they contract with the state. If they do, go elsewhere. If you have reason to distrust the state, it doesn’t make much sense to trust those that do business with the state.
When choosing a therapist or counselor, question them closely to make certain they share or respect your closely-held convictions. If you are Christian, choose a Christian counselor or enroll in a Christian-based child rearing class. If you are a vegetarian, choose a counselor that will respect the choice you’ve made for your family. If you homeschool, chose a counselor that understands and respects homeschooling.
Do not sign a release of information for the state agent to speak with your therapist or obtain records. If you’ve gone voluntarily prior to a finding of abuse or neglect, you will bring the information to court with you to use in your defense. There’s no reason for the state agent to have it unless they have a court order.
If the agent has a court order for the information, it should be limited to the diagnosis or findings, not the entire file. The agent should not get a court order for the information prior to an adjudication of abuse or neglect. If such an order has been made, you’ll want to file a Motion to Reconsider or an appeal.
Be sure to get a clear order for visitation and not something like, “parents will get regular visits”. The order should outline exactly how often visits should occur and what type of restrictions will be imposed on them. If you don’t have a clear order, you can file a Motion to Clarify with the court.
In summary; before you do anything, require a court order. If you want something, seek a court order.
If the state fails to comply with any court order, you can file a Motion to Show Cause to hold the agency in contempt of court. If you disagree with an order, file a Motion to Reconsider or an appeal. If you’d like a court order explained more clearly, file a Motion to Clarify.
Motion to Reconsider
[Full Name], [plaintiff or defendant] in the above captioned cause, moves the court to reconsider its opinion and order in this cause dated [date].
Grounds for this motion are as follows:
[list]
WHEREFORE, [plaintiff or defendant]
respectfully moves the court to reconsider its opinion and order in this regard and to modify the order to reflect that [state fully the relief now sought].
Dated: _________.
[Signature]
Attach Certificate of Service and Notice of Hearing forms.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing was placed in the U.S. Mail, postage prepaid, on the _____ day of [month], [year], and properly addressed to:
(List all parties names and addresses.)
[Signature]
MOTION TO CLARIFY
[Court Heading and Caption. Should include the court name, plaintiffs and defendants and case number.]
COMES NOW, [full name], [father/mother/parents] of the above named minor child[ren], and moves this Court to clarify the language in the Journal Entry of [hearing], dated [date] in the following manner:
1. [quote]
An example:
1. The Journal Entry reads as follows:
"more frequent and monitored visits between mother and child will occur"
Movant requests that this language be clarified to include:
A. Exact days, times and locations the visits should occur.
B. Date visitation will commence.
WHEREFORE, movant prays for the relief as set forth above and for such other and further relief as the Court deems just and proper.
[Full Name & Address]
Motion for Order to Show Cause for Contempt
[Full Name], [Plaintiff or Defendant] in the above entitled matter, in pro per, respectfully moves this court that an order issue, citing and summoning [Agency Name] to appear and show cause, if any he has, why he should not be punished for contempt of court for having failed to comply with the provisions of the judgment heretofore entered, such judgment requiring [list].
This motion is made on the grounds that [specify grounds with particularity that indicate non-compliance].
WHEREFORE, [plaintiff or defendant] prays for the relief as set forth above and for such other and further relief as the court deems just and proper.
[Full Name & Address]