California Guardianship

[SLYarnell]

Dear Soc,

I think you will remember we had the California guardianship where the host mom and dad ended up divorcing when the "mom" threw a knife at the "dad" causing a pretty severe injury. We filed to terminate based on changed circumstance and best interest of the child as there was also some indication that the "host mom" had previously at least threatened my SD with a knife as well.

There are documented reports of the "host mother" hearing voices and seeing spirits.

In the first hearing to terminate, the male guardian's lawyer stated that my SD (and the other 5 children) had been removed from the home and all were now living with him at his parents home. So the immediate danger had been resolved. The judge set another date in late June for a contested hearing. The judge said the question was, did the host father know that the "mom" was a danger to her children (and my SD) and only did something when he himself was injured, or, was he completely unaware of the situation, and moved the children away from the danger once he became aware.

We believe that his job as a teacher in California trains him to look for the signs of abuse, as he is a mandatory reporter of child abuse, and as such he HAD, or should have known and/or been aware. So what we want is some independent testimony, showing that he witnessed events that could only be described as abusive.

 My SD had a court appointed lawyer who resigned due to the inability to work with the "host mom". We want to subpoena her to testify.

I understand that there is lawyer/client privilege between my SD and her lawyer, My question is,  would we be able to subpoena this lawyer to question her along the lines of the contacts she had with the guardians? We believe she would testify to yelling and screaming and the continuing unwillingness of the husband to "control" the abusive actions of his wife.

Thanks for your time and opinions,

SLY

[socrateaser]

>I understand that there is lawyer/client privilege between my
>SD and her lawyer, My question is,  would we be able to
>subpoena this lawyer to question her along the lines of the
>contacts she had with the guardians? We believe she would
>testify to yelling and screaming and the continuing
>unwillingness of the husband to "control" the abusive actions
>of his wife.

I disagree with the judge's analysis as to what is your burden of proof. The question could be whether or not the foster parent knew of the dangerous propensities of his spouse beforehand. However, the actual standard for a change in custody is clear and convincing evidence of a change in circumstances affecting the child's best interests.

The fact that the foster parent had to relocate the child due to the problems at home is clear and convincing evidence of a change in circumstances -- you shouldn't need to prove anything else in order to get a custody hearing.

As to the lawyer-client privilege, the privilege is held by the client, not the attorney, so technically, the child has the power to waive privilege and thereby force the attorney to testify. However, the court would want to know if the child is competent to intelligently waive privilege, and the guardian could object on that basis. It's all about how the judge sees the benefit vs. the invasion of the privilege in this case.

[SLYarnell]

We have the hearing.  It is scheduled for the 20th of June.  What we need is how to convince the judge that the best interest of the child is to be with her "real" dad where she is our only focus not as a group of 6 children living with their "grandparents" due to domestic violence.

The guardian has also stated he will be living with his parents for at least another year while he continues his education and works as a teacher.

The child most likely wont waive privilege as she feels torn between us and the guardians.  That was why we wondered if we could subpoena the atty to talk about the guardians only, not SD's and atty's relationship.

Do you have any thoughts that might take a better track?

SLY

[socrateaser]

>Do you have any thoughts that might take a better track?

Wow. This is really a bullshit case. I would simply assert, that in as much as the guardian is having life changing difficulties of his own, that it is no longer obviously in the child's best interests to be under the guardian's care, visa vis the actual father, that there is now an established parent-child relationship between the father and his son, and that the father's fundamental rights should be given substantial weight in the court's decision, and therefore, on balance, that the child should be returned to the custody and care of his father.

The case is not, as the court would have it, all about whether or not the guardian knew that his spouse was dangerous. This is paying lip service to the fact that the real change in the case is that there is now a parent-child relationship with the real father, and that the Constitution demands some deference to that relationship.