From: "                       "   
To: leonard@oregonfamilyrights.com  
Sent: Friday, October 11, 2002 7:10 AM  

Dear Leonard:

.... unfortunately it is ironic that the American people can get terribly  excited about the sociopaths in the middle east but not about the destruction of children and families here at home. Americans like their illusions- not only on the big screen but in everyday life.  A very frustrating state of affairs for both of us.

I worked for Child Welfare, State of Michigan for over 23 years. During that time I was generally fighting with supervisors and others about how to handle cases. Anyway, here is the way I see it. 

In one word, Evidence.  

Despite  your constitutional rights, the judiciary has both jury and bench trial powers.  If something entails a prison term, then a citizen has a right to a trial by jury (and the rule of evidence is clear and convincing). 

If the punishment does not entail prison for the alleged perpetrator,  then a bench trial is perfectly constitutional (is it? I don't think so) and the rules of evidence change to preponderance. The judge becomes jury and judge at once. In this situation, your freedom is never threatened. The child is removed, a fine like in a traffic court (!),  but the alleged perpetrator will not go to jail.  

This word Preponderance, a legal precept, is your enemy. 

Preponderance of the evidence means that in the good judgment of the judge, the evidence presented indicates that a child has been harmed. Unfortunately, It is the PS worker who writes up a list of pieces of evidence that is called a petition. Often this evidence is presented ex parte meaning the alleged perpetrator is not present to defend him or herself. 

A lot of this so called evidence is the PS worker stating that they have seen or heard or whatever. 

It is very important that you advise your parents to get this petition. Go to the courthouse and ask the Court Clerk for a copy ~please~. It is public record. 

They should read it themselves and respond to it in writing immediately and I cannot stress this word "immediately" enough.  Time is the critical factor here. 

A person does not need an attorney to do this.  If they feel they are not good writers, then finding an English major will do them more good than an attorney. If they have a witness or other document to show that the petition is wrong, they should get this and show up in court with this stuff or the witness.

If they have actually done the deed like leaving a child alone they should still respond in writing with an explanation.

Most parent's first reaction is to find the PS worker so they can find their child. Wrong move but understandably the one that a distraught parent would choose. The hearing is held within a day or so. (called the 72 hour or dependency hearing)

The parent usually is so busy running around looking for help to get the child back that the allegations stand only because no one challenged them. Also the parent may miss this hearing or don't know about it. It is this hearing that is most crucial.

The first hearing ex parte is also the problem. The PS worker and the judge are basically alone.   What constitutes harm to a child changes with each county, each social service office and each jurist.  Preponderance of the evidence is arbitrary because there is no standard to compare the evidence at hand. 

The polices and laws  are so vague that each county can decide what is and is not child abuse/neglect.

Conversely,  some of the most pernicious child abuse does not leave any evidence, like situational sexual abuse where the perpetrator  does not penetrate the victim but touches them inappropriately or threatens them into oral sex or other frightening behaviors. This can go on for years and the statements of the child are suspect as a lie or fabrication.  

Because sexual abuse is a criminal offense,  a jury trial is available to the perpetrator. Prosecutors rarely have sufficient evidence--clear and convincing-- to prosecute.  A child's statements comes down to their  word against their parent/stepparent or other adult (Guardian Ad Litim, CASA, medical or psych clinic worker).

Emotional and psychological abuse of a child is the same--no real evidence by the court's standards.

Under this system the nightmare is that a lot of benign events turn into events easily documented in (the extremely low) terms of evidence. Judges actually hide behind recommendations of FOC (Friend of the Court) counselors and PS workers because they (the judges) have no clue.  They are lawyers not mental health professionals. 

At the same time jurists and social workers enjoy immunity* under the law for their horrible mistakes. The bad guys get away with murder and good people  end up having children removed from school before they even know what is happening. *Fixed 1-24-2008 in BELTRAN v. SANTA CLARA COUNTY

The solution is legal in my opinion.  And organizations like JAIL and your organization need to come together and unite.  Although, education and support of parents is important, it is the law and judicial process that needs a big overhaul with regard to family matters.  

Quite Frankly, the law should be very specific with regard to the conditions under which children can be removed from their parent's care. 

For example, leaving a child alone is not a good idea but hardly warrants removal and foster care.  Cases like sexual  abuse should be reviewed by a tribunal of qualified persons who are elected into their positions and who are not in any way beholding to courts.  They should review the state's evidence (PS evidence)  and interview parents and others who are interested before a decision is made to remove a child.

If a child has been horribly beaten or battered, they are usually in the hospital and the hospital can retain the child if this seems prudent to this tribunal. No one should be excluded in this process.  

Another problem with the law is that only the parties can come forth and only an attorney can represent you at the FOC (friend of the court) or in court.  This seems to me a big violation of your civil rights. 

Most defense attorneys or attorneys at court come in minutes before the hearing and have no idea of what has occurred in the case,  but yet represent you.  A child advocate who is with a family for quite some time needs to be able to represent the family if they so choose in any context--tribunal or courtroom. They know what the hell is going on.

Finally, the courts now hold jail over the custodial parent's head if the custodial parent does not comply with visitation orders.  Also the judge can remove a child not because the custodial parent is abusing the child but because the parent is complaining that the non custodial parent is abusing the child.   A complaint without a substantiated child abuse conviction is seen as false witness. So you  see the whole mess is a quagmire. 

On the one hand PS is taking children away for nothing and on the other a sexual  abuser gets away with damaging a child's well being for life. In custody matters the abuser can continue to abuse unfettered because if the other parent complains the judge can remove the child because of the complaint.

I think there are remedies to this whole mess, but the first thing to do is to get grass roots organizations talking and meeting and contacting legislators. Quite frankly this is a good time because there is recognition of this mess by professionals who wish to change it.

*************************

Preponderance- the fact or quality of being preponderant; superiority in weight, power, numbers, etc.: The preponderance of votes is against the proposal.

Petition- an application for a court order or for some judicial action.

1. Law From or on one side only, with the other side absent or unrepresented: testified ex parte; an ex parte hearing.
2. From a one-sided or strongly biased point of view.

benign-

represent-

YOU have all the rights but when there is a representative on your name YOU are NOT THERE and the court acts as though there is no human there with rights, no parents, only slaves and the state says they are the parents. It is insane but that is what they say literally. 

People must learn the difference between "represented status" and "pro per" or "sui juris" status in the court. The deception is that "pro se" means literally "represent myself" and you do NOT "represent" yourself - you ARE yourself. The difference is between living and being a non entity. Do not believe anyone in the court who tells you there is no difference in what these terms mean in the court process. From Gaston's Taking over your case Sui Juris