As a general rule, California malicious prosecution actions are dicey propositions insofar as they always subject the plaintiff to a potential Anti-SLAPP motion from the defendant pursuant to California Code of Civil Procedure section 425.16.   At a minimum, such a motion requires the plaintiff to immediately produce admissible evidence establishing the malicious prosecution claim.  The failure to produce such evidence causes the dismissal of the case and may result in the plaintiff having to pay the defendant’s reasonable attorney fees for bringing the motion.   Malicious prosecution cases arising out of family law court matters are even more problematic.

As a general rule, for public policy reasons plaintiffs are not entitled to bring malicious prosecution actions stemming from matters originating in the family law courts. Bidna v. Rosen (1993) 19 Cal.App.4^th 27.  A very narrow exception to the Bidna rule was carved out by Nicholson v. Fazeli (2003) 113 Cal.App.4^th 1091, wherein a wife was permitted to maintain a malicious prosecution complaint against a Trust (which had previously filed a cross-complaint in the wife marital dissolution action) because the Trust’s cross-complaint did not implicate any family law issues (i.e., it did not specifically involve allegations related to marital status, child custody, spousal support, or the division of community property).  Because the Trust’s cross-complaint was a fairly rare animal (the vast majority of all family law court pleadings will involve some family law issue), parties contemplating filing a malicious prosecution action arising out of a family law court are strongly advised to consult with an attorney to obtain advice before filing a complaint that might be immediately dismissed and, even worse, might subject the party to paying the other side’s attorney fees. source

Proving the “Prior Action” Requirement of a Malicious Prosecution Case

How To Sue For Malicious Prosecution For A Civil (Not Criminal) Lawsuit.

You get sued.  They claim to be the “victim,” but you are the real victim.  You are being sued based on a falsehood … for their improper motives.  Can you strike back for justice?

Victims often ask lawyers whether they can sue for malicious prosecution.  Situations arise when a victim has been sued wrongfully.  They have stress.  They have legal expenses.  Other costs come in.  The wrongful lawsuit damages their reputation.  It may even be damage their credit rating.

Some victims merely want emotional support.  They want someone to tell them they are right, the person that sued them is wrong, and provide sympathy.  That is certainly the expected role of family, and friends.  It is a whole other matter entirely to counter – sue the person and attempt to win money from them.

The Benefits of Malicious Prosecution Suits

Malicious prosecution lawsuits have three main benefits:

1. Compensation for out of pocket and other expenses.
2. Deter or prevent the wrongdoer from wrongfully suing others in the future.
3. Deter other similar wrongdoers from creating victims.

The same legal analysis must be completed regardless of whether you are a victim or an attorney.  This article explains the process in a civil setting.  Look to our companion article on criminal cases.

The Technical Legal Test to Win at Malicious Prosecution

The traditional elements of a lawsuit for malicious prosecution are as follows:

1. The commencement or prosecution of a proceeding against the victim;
2. “Legal Causation” by the present defendant;
3. The lawsuit’s termination in favor of the present plaintiff;
4. The absence of probable cause for the proceeding;
5. The presence of malice;
6. Damage to the victim.

State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. banc 2014);

Bonzo v. Kroger Grocery and Baking Co., 125 S.W.2d 75 (Mo. 1939);

Higgins v. Knickmeyer-Fleer Realty and Investment Co., 74 S.W.2d 805,812 (Mo. 1934).

This is the traditional law for malicious prosecution.  Is it confusing you?  There is an easier analysis.

The Easier to Understand Test for Malicious Prosecution

The Missouri Approved Instructions for a jury trial present a straightforward analysis for evaluating potential malicious prosecution cases.  It is meant for ordinary people to understand and will be easier for you.

The test for malicious prosecution is as follows:

• First, did the wrongdoer instigate or continue a judicial proceeding (a lawsuit) against the victim (you) that the victim won?
• Second, in doing that, did the wrongdoer acted maliciously and without reasonable grounds?
• Third, was the victim damaged?

Paraphrase of M.A.I. 23.07 (2000 Rev.).

What Does “Maliciously” mean?

You may have noticed some technical terms.  They are important.  The first term is “maliciously.”  In a civil setting, maliciously means intentionally doing a wrongful act without just cause or excuse.  It does not necessarily mean hatred, spite, or ill will.  M.A.I. 16.01 (1) (1996 new); see also Sanders v. Daniel Intern Corp., 682 S.W.2d 803 (Mo. banc 1984); and Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (Mo. banc 1986).

What Is Reasonable Grounds?

Reasonable grounds is also needed for your analysis of whether you have a malicious prosecution case.  Luckily, reasonable grounds is defined.  “Reasonable grounds” means the existence of facts which would cause an ordinarily careful person to believe plaintiff (the victim) was guilty of the offense charged.  See Palcher v. JC Nichols Co., 783 S.W.2d 166 (Mo. App. 1990).

Our Law Dislikes Malicious Prosecution Cases

Malicious prosecution cases are not favored in the law.  Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979).  Because of this, you as the victim must be prepared to provide “strict and clear proof” of each of the elements of malicious prosecution.  Id.

Probable Cause Weighs In Too!

The second element of malicious prosecution requiring reasonable grounds is closely related to probable cause.  You should plan on addressing the probable cause elements as part of your malicious prosecution case.

The Missouri Supreme Court has set out a definition for probable cause in civil cases.  It is as follows:

1. The person’s beliefs in the facts alleged,
2. Based upon sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus
3. A reasonable belief that under the facts the claim may be valid under the applicable law.

Holly v. Caulfield, 49 S.W.3d 747, 750-51 (Mo. App. 2001).

The Easy to Understand Test for Probable Cause

Basically, you need to ask yourself the following questions:

• Did the person who sued you believe the facts they were alleging?
• Would any reasonable person believe those facts?
• Did the law allow a lawsuit against you; under those facts, assuming they were true?

Can I Get Punitive Damages To Punish?

Punitive damages are called “exemplary damages” and are not favored by the courts, much like malicious prosecution cases.  To get punishment damages in a malicious prosecution case, “the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper Judication of the claim on which they are based.”  Proctor v. Stevens Employment Services, Inc., 712 S.W.2d 684 (6, 7) (Mo. banc 1986).  Remember that punitive damages require a separate determination by the court by “clear and convincing evidence,” which is a higher standard.  Remember, who you are suing must have acted with a conscious disregard for your rights.  I encourage you look to my article on punitive damages to see the specific elements of that cause of action.

Conclusion

Malicious prosecution cases are complex and have many legal requirements, as you can see.  This is why malicious prosecution is so often an accusation and so seldom an actual lawsuit.

Usually, these lawsuits come about when it is either debt collector who does not care what the facts are and sues as many people as they can to collect money.  Secondly, we see malicious prosecution lawsuits when it is an actual person who is just suing to “get at” somebody.  I wish you luck in your analysis and hope any victims can receive just compensation based upon our analysis. source

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

learn more about Anti-SLAPP:

Anti-SLAPP Law in California 1st Amendment Freedom of Press & Speech

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation 

Our Vision

Every day we work to provide an extraordinary place where smiles and laughter lead to wonderful memories with family members, friends, and caregivers. We want Morgan’s Wonderland to be a place where the common element of play creates an atmosphere of inclusion for those with and without disabilities while encouraging everyone to gain a greater understanding of one another.

Morgan’s Wonderland is just like any other theme park except for a culture and environment that assures 100 percent enjoyment by every person entering the Welcome Center. Unfortunately, countless children and adults with special needs do not have access to facilities that enable them to enjoy outdoor recreation fully. Morgan’s Wonderland is changing that every day.

The Inspiration

Call her a catalyst, a spark, an inspiration. Morgan Hartman doesn’t realize it, but her ability to smile through physical and cognitive special needs spurred her parents – Gordon and Maggie Hartman – to do things never before accomplished for individuals with special needs and their families. Morgan inspired the creation of a one-of-a-kind theme park and other initiatives benefiting the inclusive community.

The tipping point occurred in 2006 when Gordon observed Morgan wanting to play with other vacationing kids at a hotel swimming pool, but the kids were leery of Morgan and didn’t want to interact with her. Then and there, Gordon and Maggie resolved to create opportunities and places where those with and without disabilities can come together for fun and better understand one another. That led to the construction of Morgan’s Wonderland in an abandoned quarry in Northeast San Antonio. It’s apropos that the butterfly is the symbol of this unique theme park; soaring to one success after another is now commonplace.

When it celebrated its grand opening on April 10, 2010, Morgan’s Wonderland became the world’s first theme park designed with individuals with special needs in mind and built for everyone’s enjoyment. The completely wheelchair-accessible park features more than 25 elements, including rides, playgrounds, and other colorful attractions. From the very beginning, anyone with a special need has been admitted free of charge, no questions asked.

It is Morgan’s sincere hope that everyone with a special need – young and older, healthy or ailing, introspective, or outgoing – will be touched extraordinarily by Morgan’s Wonderland: a shrine of inclusion, an oasis of friendship, an unforgettable wonderland…Morgan’s Wonderland!

The Visionary

Native San Antonian Gordon V. Hartman sold his highly-successful homebuilding business in 2005 to pursue his and wife Maggie’s dream of helping children and adults with special needs. He proceeded to build nonprofit Morgan’s Wonderland, still the world’s first and only Ultra-Accessible, fully-inclusive theme park.

The phenomenal success of Morgan’s Wonderland – almost 3 million guests from all 50 states and over 120 other countries through park visitation and special events – encouraged Gordon to add award-winning Morgan’s Inspiration Island splash park, Morgan’s Sports complex, year-round Morgan’s Camp and Morgan’s MAC (Multi-Assistance Center). This latest venture involves more than 30 community-based organizations that provide both medical and non-medical services to children and adults with special needs. Morgan’s MAC sets a new standard for delivering coordinated care in an inclusive atmosphere through the guidance and follow-through of specially-educated team members known as Navigators.

All of Gordon’s innovations – and more to come – comprise Morgan’s, the umbrella organization that strategically coordinates planning, fundraising, marketing and communications for all its “family” members. In every endeavor, Gordon emphasizes the importance of inclusion, bringing together those with and without special needs and disabilities for interaction and a better understanding of one another. In addition to his many accomplishments through Morgan’s, Gordon has worked closely with governmental and community leaders on improvements that further add to San Antonio’s growing reputation as “Inclusion City, USA.”

The inspiration for all that Gordon has accomplished is his 30-year-old daughter Morgan, who’s dealt with physical and cognitive special needs since birth. In the beginning, Gordon’s guiding motto was: “Together, we CAN make a difference!” As a result of many successes and lots more to come, that motto now is: “Together, we ARE making a difference!”

Click here to read the full bio.

source

Your kids are gonna figure you out someday. I promise you they are. The type of parent you are. The type of spouse you are. How you treat others. How much effort you put into them. You will be someone they look up to, or someone they never wanna be like.

Which of the following cases fits into the tort of abuse of process?
and… 
Which of the following cases fits into the tort of malicious prosecution?

In February 2015, Dr. John Costino and his wife Barbara filed a malicious prosecution lawsuit against Cape May County. He was accused approximately six years prior to the lawsuit of distributing illegal painkillers. He was acquitted in 2012.

In 2007, the case of Pinewood Homes, Inc. v. Harris resulted in the defendant obtaining a judgment for several thousands of dollars. Harris feared the plaintiff, Ritche, wouldn’t pay. So Harris obtained a preliminary injunction against Rictche and all companies he had ownership interests in, including Pinewood Homes. However, Pinewood wasn’t a part of Richie’s lawsuit because Ritchie was only a shareholder. Pinewood then sued Harris for trying to maliciously coerce it into paying Ritchie’s judgment.

In 2014, a federal jury ruled Homicide Detective Dwayne violated Hephzibah Olivia Lord’s civil rights for maliciously arresting her. The arrest was for a murder she didn’t commit. Her boyfriend allegedly drank an energy drink, vodka, then committed suicide.

Abuse of Process and Malicious Prosecution are similar on the surface, but they have essential differences.

Abuse of Process aka Abu$e of Proce$$

Let’s say someone doesn’t have a reasonable basis to file a lawsuit against you. Maybe he subpoenas you, continuously files motions, or seeks a retaining order. These are examples of abuse of process. Abuse of process occurs when someone uses the legitimate judicial process for reasons not intended.

With this tort, a plaintiff has to prove four elements for a successful claim:

1. The defendant used the process
2. The defendant had an ulterior motive
3. The defendant misused the process
4. The plaintiff incurred injuries and damages from the result of the abuse of process

To prove element one, you show the defendant used the “process” such as filing:

• Counterclaims
• Appeals
• Motions for sanction
• Summons requests
• Change of location

• trying to hold someone on warrants that are based on charges you plan on dropping as they are malicious but you still request them to turn themselves in and be held on the bond for those crimes for which you know have no merit!

Showing facts and circumstances usually determine whether there was an ulterior motive. The court looks at the intent of the plaintiff and defendant. “Having an ulterior motive” is defined as attempting to gain an economic, business, or legal advantage.

A misuse of process generally exists if the defendant:

• Used the process in a way not intended, contemplated, or authorized by law
• Used the process in an intentional way and knew it would be misused

The best way to think about abuse of process is with two words: improper purpose. The defendant had an improper purpose when filing any lawsuit against the plaintiff.

Malicious Prosecution aka Maliciou$ Prosecution

Let’s say you were at work at 4 p.m. on Tuesday. That day an individual robbed a bank near your workplace. It just happens to be where your ex-spouse worked. You have an alibi and witnesses who place you at work. You didn’t commit the crime. In fact, there’s no reasonable way you could have committed the crime. You’re charged and prosecuted for a committing a bank robbery. Later, the charges are dropped or you’re found not guilty. This is referred to as malicious prosecution.

This tort has four elements a plaintiff must show to win her case:

1. The plaintiff was prosecuted for a crime she didn’t commit and found not guilty
2. No probable cause existed to show the plaintiff was guilty of committing the crime

3. The prosecutor knew no probable cause existed and still continued to prosecute and try to prove guilt

4. In some jurisdictions, a plaintiff must also prove she suffered injuries because of the criminal prosecution beyond typical mental distress.  

You’ve probably figured out by now which of the cases are abuse of process or malicious prosecution. Just in case you’re not sure:

1. Malicious prosecution
2. Abuse of process
3. Malicious prosecution

Although both torts are similar, they are distinct. As you’ve read, malicious prosecution typically happens after a criminal case where a person was not guilty of the crime. However, they were still prosecuted for it anyway. With abuse of process, an individual is trying to gain an advantage by filing a frivolous lawsuit against someone. source

Malicious Prosecution, Abuse of Process, and False Arrest

People falsely accused of crimes, and prosecuted as a result, have been severely harmed

Malicious Prosecution

Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:

• charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
• intends to punish a person by harassing them with criminal proceedings;
• intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
• charges a person with a crime to divert attention from the actual perpetrator.

A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.

A person forced to defend a groundless civil suit likewise suffers damages and may be able to recover for malicious prosecution.

To recover on a state-law malicious-prosecution claim, an Ohio plaintiff must prove:

• (a) malice in instituting or continuing the criminal or civil legal proceeding;
• (b) lack of probable cause or reasonable grounds to believe the allegations; and
• (c) termination of the prosecution or civil lawsuit in favor of the accused.

Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.

Relationship to “Abuse of Process” and “False Arrest”

Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.

Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.

Malicious Prosecution and False Arrest as a Civil-Rights Violation

In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.

Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:

• (a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
• (b) there was a lack of probable cause for the criminal prosecution;
• (c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
• (d) the criminal proceeding was resolved in the plaintiff’s favor.

What To Do If You Believe You Have Been a Victim of Malicious Prosecution

Especially in this class of cases, usually involving an abuse of power or oversight in the justice system, it can be unclear what options are available. With shaken confidence in the efficacy and access to justice provided by the judicial system, it may appear as if there is nowhere else to turn for help. But this is not the case. source

Differentiation of Abuse of Process and Malicious Prosecution

Abuse of Process and Malicious Prosecution Lawyer

There are differentiating factors between abuse of process and malicious prosecution. Abuse of process refers to the notion that the plaintiff can sue when a defendant starts legal proceedings with the intention of obtaining results for which the process was not designed. Malicious prosecution, on the other hand, can sue when a defendant “maliciously” prosecutes a criminal case or uses a civil proceeding against the plaintiff when the defendant knows he or she does not have a case.  Within this concept, the plaintiff must have obtained a “favorable termination” of the defendant’s malicious case before they can sue for malicious prosecution.

Abuse of Process

The elements of an abuse of process claim include an ulterior purpose by the defendant/defendants other than resolving a legal dispute, and a willful act in the use of the legal process not proper in the regular conduct of the proceeding. The legal process portion can be within any part of the lawsuit, not simply the entire lawsuit. The ulterior purpose requirement of this notion can be thought up as even though the defendant has a technical right to use the legal process, they did so to extort something else from the plaintiff.

Malicious Prosecution 

Malice refers to evil intent, which may be implied if the defendant acted in willful disregard of the rights of the plaintiff, wrongfully acted with a justifiable cause, or acted or omitted a duty betraying the willful disregard of a social duty. Malicious prosecution claims require several components. First, a proceeding. Even if an individual that has brought a criminal or civil proceeding thinks that they can have a winning case, suing for a legitimate reason at the beginning of the case, they can be guilty of malicious prosecution if a reason is discovered that they cannot win during the case, continuing the case for improper motives. Secondly, reasonable grounds is another notion that must be enacted to show malicious prosecution. An individual bringing the original prosecution or lawsuit must have probable cause to which the legal action was legitimate and has a chance of winning. Contrarily, if the individual bringing the lawsuit knows that the action is illegitimate, there is not a need to prove that a hypothetical reasonable person would share the idea that it was illegitimate.

Next, improper purpose is an additional concept that must be displayed. This notion is piggybacked with the

California Fathers’ Rights 2024 – What Are My Rights as a Dad?

Fathers’ Rights

It’s crucial to realize that a father has exactly the same rights as a mother in California. Judges in custody cases are required to make their decision based just on what is most beneficial for the child. They are legally prohibited from presuming that the sex or gender of one parent provides an inherent benefit for the children than the other.

That said, the specifics of a custody case can mean that the mother is granted more rights than the father, often because of the father’s work commitments. However, if a father can demonstrate that they can be as available as the mother, they are due equal rights to the children. If that can be shown, a judge must have a compelling reason, other than gender or sex, to take rights away. Some of the rights that a father is granted include:

• Equal Parental Decision-Making – This is also known as joint legal custody. Fathers have an equal right as mothers regarding the decisions that are to be made about the child’s parenting, including medical, education, and religious decisions.
• Equal Parenting Time – While a 50/50 arrangement is not possible in every case, it is important that fathers recognize that they have a right to fight for as close to that arrangement as they can manage. If their circumstances change, particularly as the child ages and is able to care for themselves for short periods of time, then fathers should make an effort to gain more custody time when possible.
• Modification of Custody – There are a number of reasons why custody might be modified to give fathers more time with their children. In particular, if the mother attempts to alienate the children from the father or makes false claims regarding him, this should be brought to the attention of the court.
• Protection Against False Allegations – False allegations are taken very seriously by the courts and can result in fathers’ getting greater or sole custody. If you are falsely accused, it’s important to remain calm, say nothing until you can speak with your lawyer, and let the legal process handle the matter.

THE CONSTITUTIONAL FRAMEWORK OF FATHERS’ RIGHTS

By K. Edward Greene1

The Fourteenth Amendment

No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Federal Case Law

Section 9.32 Particular Rights — 14th Amendment — Due Process — Interference with Parent / Child Relationship (read all about that here) (and can be downloaded here)

read another amendment section under the 5th amendment below Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

Due process is what separates a free society from a police state. When the Fourteenth Amendment of the Constitution says that the government shall not “deprive any person of life, liberty, or property, without due process of law, ” that does not meant that the government cannot take away a person’s life, liberty or property, but that it cannot take those things away without first giving that person a fair chance to defend him or herself. For instance, the government cannot imprison someone or take away his or her children without allowing the person to challenge the government’s actions. source

Parents Absolutely Have Rights to Their Children’s Education

Parents’ rights to raise their children is found in the 14th Amendment.  

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Due Process Clause prevents the government from intruding on fundamental rights and liberty interests, one of which is parents rights in controlling the care of their children.

Many Supreme Court Cases Have Interpreted the 14th in Conjunction with Parents Rights

Troxel v Granville was a case about grandparents rights v. parents rights. In that case, unmarried parents Granville and Troxel had 2 daughters before they separated.  Troxel committed suicide.  Granville’s parents brought an action seeking visitation with the kids.  Eventually Granville remarried.

The U. S. Supreme Court affirmed the Washington state supreme court’s ruling that the statute used by the grandparents to seek custody was an  unconstitutional infringement on the fundamental rights of parents to control the upbringing of their children.

Troxel Golden Nuggets

In the Troxel case, the Supreme Court cited numerous precedent to support its finding that parents have a fundamental Constitutional right to the rearing of their children.  NOT the State.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.  More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”

Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535.

Parents Have a Right to Know What is Happening to Their Child at School

Here are more gold nuggets from Troxel.

We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

What About a Child’s Privacy Rights?

Bonta’s letter threatens:

“As the California Department of Education has instructed, “Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law byincreasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”

Courts have recognized that gender identity is a protected privacy right under the California and U.S. Constitutions. (See Whalen v. Roe (1997) 429 U.S. 589, 598–600 (avoiding disclosure of personal matters is constitutionally protected).

This is false.  Whalen does NOT state that children have privacy rights against their parents when it comes to health or mental health issues like gender dysphoria.

The constitutional question presented in Whalen is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor’s prescription, certain drugs for which there is both a lawful and an unlawful market.

Parents are NOT the Enemy

Opponents of the Parental Notification Policy assume parents are the children’s enemy.  They also assume that all parents would not support their child’s choice.

Both assumptions are false.

For the most part, parents love their children.  If there is something happening at the school, whether it’s bullying, eating disorder, or gender dysphoria –  most parents would quit their careers just to help get their children counseling or help them through it.

Yet according to the State, parents are not entitled to information regarding their own children

Laws are Suppose to Protect Children

Historically, laws protected children.  You must be 21 to drink alcohol.  18 to vote.  16 to drive.  Age of consent varies from 16 – 18 in all states.  Children cannot legally consent to sex.

Yet, new laws in California such as AB 665 allows minors, 12 years of age or older, to consent to mental health treatment or residential shelter services. This means a 5th or 6th grader can be persuaded by a “licensed professional” to receive treatment for a personal mental health issue and the parents don’t have to consent or be notified unless the professional considers it appropriate.

Gender affirming care for children is consensus-based, not evidence based.  It’s not wonder that gender detransition lawsuits are abounding.

Parental Notification Policy

More information about Parental Notification Policy here.

source

source

source

source

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A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings

source

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th, & 14th Amendment

 Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC –  Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process? 

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

Everything you need to know about a Defamation Case

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

Senate Bill No. 1421 – California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

 SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request 

Electronic Audio Recording Request of OC Court Hearings

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Download Here this Recommended Citation

]]> https://goodshepherdmedia.net/love-your-parents-while-you-have-them/ Mon, 06 May 2024 23:52:33 +0000 https://goodshepherdmedia.net/?p=17819 Love your Parents while you have them!

A long time ago, there was a huge apple tree. A little boy loved to come and play around it everyday. He climbed to the tree top, ate the apples, and took a nap under the shadow.

He loved the tree and the tree loved to play with him. Time went by, the little boy had grown up and he no longer played around the tree every day.

One day, the boy came back to the tree and he looked sad.

“Come and play with me”, the tree asked the boy.

“I am no longer a kid, I do not play around trees any more” the boy replied.

“I want toys. I need money to buy them.”

“Sorry, but I do not have money, but you can pick all my apples and sell them. So, you will have money.”

The boy was so excited. He grabbed all the apples on the tree and left happily. The boy never came back after he picked the apples. The tree was sad.

One day, the boy who now turned into a man returned and the tree was excited.

“Come and play with me” the tree said.

“I do not have time to play. I have to work for my family. We need a house for shelter. Can you help me?”

“Sorry, but I do not have any house. But you can chop off my branches to build your house.” So the man cut all the branches of the tree and left happily. The tree was glad to see him happy but the man never came back since then. The tree was again lonely and sad.

One hot summer day, the man returned and the tree was delighted.

“Come and play with me!” the tree said.

“I am getting old. I want to go sailing to relax myself. Can you give me a boat?” said the man.

“Use my trunk to build your boat. You can sail far away and be happy.”

So the man cut the tree trunk to make a boat. He went sailing and never showed up for a long time.

Finally, the man returned after many years. “Sorry, my boy. But I do not have anything for you anymore. No more apples for you”, the tree said. “No problem, I do not have any teeth to bite” the
man replied.

“No more trunk for you to climb on.” “I am too old for that now” the man said. “I really cannot give you anything, the only thing left is my dying roots,” the tree said with tears.

“I do not need much now, just a place to rest. I am tired after all these years,” the man replied.

“Good! Old tree roots are the best place to lean on and rest, come sit down with me and rest.” The man sat down and the tree was glad and smiled with tєαяs.

This is a story of everyone. The tree is like our parents. When we were young, we loved to play with our Mum and Dad. When we grow up, we leave them; only come to them when we need something or when we are in trouble. No matter what, parents will always be there and give everything they could just to make you happy.

You may think the boy is cruel to the tree, but that is how all of us treat our parents. We take them for granted; we don’t appreciate all they do for us, until it’s too late.

LESSON OF THE STORY:

Treat your parents with loving care. For you will know their value, when you see their empty chair. We never know the love of our parents for us; till we have become parents .

Hon Julie A. Palafox

341 The City Dr S, Orange, CA 92868

The Honorable Julie A. Palafox
Orange County Superior Court, Department L73
CA Bar #: 111122 (December 1983)
Appointed By: Gov. Edmund G. Brown, Jr.

her Home address for peaceful assembly

213 S Muroc Pl Fullerton, CA 92833

We are going to be having a peaceful assembly soon, please email us to participate in your 1st amendment rights against tyrannical government. We are going to be holding a peaceful assembly in front of her home address to protest his illegal behavior and hand out leaflets and flyers.

1st amendment right to peaceful public assembly in front of any governement employees home to protest their abuse of civil rights and their sworn oath to the US Constituion

Look at how she looks,  she has a great look on her burnt out face! its says “I hate my life, I hate my career, I couldn’t be anything without the governors hand out, I am an unhappy incompetant person who hates your family as well”

Mrs Julie Palafox remove clouded bias Judge Claustro from my Case #17FL000138 who violated my due process rights.Judge Claustro for being out of color of the law and outside his jurisdiction. Judge Claustro is out of color of the law and outside his juri$diction. Judge Claustro has violated my 4th,6th and 14th amendment rights he violated my due process rights and will now be torted. remove him!

The Honorable Julie A. Palafox, as leader of the family law section, i expect you to do the right thing and honor my rights by removing this bia judge Claustro.

Mrs Julie Palafox remove Judge Claustro from my Case #17FL000138

i am going to sue Judge Claustro for being out of color of the law and outside his jurisdiction. he violated my 4th,6th and 14th amendment rights he violated my due process rights. he muted me in his courtroom, then the Mr brilliant Claustro asked me to speak to answer questions for him, when i could not answer, DUE TO HIM (HOST) MUTING ME , i was unable to answer his question. he became upset that i could not answer and then answered for me.

We have another vindictive bias judge, and all our newspaper keeps getting is transcripts and live appearances where our writers are in attendance as witnesses to this abuse. We send out undercover writers inside the courtroom to witness this behavior.
Judge Israel Claustro has clouded judgement, and it is quite apparent he is on the mother’s side, does not care for the child at all, and hates the father!

1st meeting with the father he immediately had an attitude that was apparent and obvious from the start. Fair and adequate justice was never provided for the father, as we also have obtained the recorded court room audio.

Claustro did not allow due process to happen, he muted the father and answered for the father. We feel it is an awesome summary of your awesome career but APPARENTLY the vindictive men beneath you do not see eye to eye with your want for fairness in family law.

ATTACHED IS THE EVIDENCE AND THE REMOVAL FORM
YOU COURTROOM HAS BEEN NOTIFIED.

HERE IS ALSO A LINK TO DOWNLOAD IT FOR YOURSELF AS WELL

https://drive.google.com/file/d/1IQ55zj5lSYuNSFCVwso0HhALgNub6Njk

learn more ABOUT MRS PALAFOX http://www.therobingroom.com/california/Judge.aspx?id=24488

and the rulings below can also be downloaded here
https://drive.google.com/file/d/10kIBiTJoXwY6KvdUat4qNCSFzJ-V6ElV/view?usp=drive_link

(People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 699-700.) may not inquire into the good faith of the moving party’s belief in the judge’s prejudice.

THIS CLARIFY YOU DON’T GET TO GO AROUND CHANGING IT FOR YOURSELF 

“The right conferred by . . . section 170.6 . . . is a substantial right which is now part of the system of due process and judicial fair play in this state.” ( McCauley v. Superior Court (1961) 190 Cal.App.2d 562, 564 [ 12 Cal.Rptr. 119].)
“The purpose of the disqualification statute is . . . to promote fair and impartial trials. . . .” ( International Union of Operating Engineers v. Superior Court (1989) 207 Cal.App.3d 340, 349 [ 254 Cal.Rptr. 782].)

As stated by the Supreme Court, “`[i]n order to insure confidence in the judiciary and avoid the suspicion which might arise from the belief of a litigant that the judge is biased in a case where it may be difficult or impossible for the litigant to persuade a court that his belief is justified, the Legislature could reasonably conclude that a party should have an opportunity to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body.'” ( Solberg v. Superior Court, supra,19 Cal.3d at pp. 192-193, quoting Johnson v. Superior Court, supra,50 Cal. 2d at p. 697.)

Accordingly, courts have long “recognized that in enacting . . . section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is `automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.” ( McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531 [ 116 Cal.Rptr. 260, 526 P.2d 268], disapproved on another point in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 799, fn. 18 [ 119 Cal.Rptr. 841, 532 P.2d 1209], citing Pappa v. Superior Court (1960) 54 Cal.2d 350, 353 [ 5 Cal.Rptr. 703, 353 P.2d 311], italics original; Mayr v. Superior Court (1964) 228 Cal.App.2d 60, 63 [ 39 Cal.Rptr. 240], quoted in Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 789 [ 171 Cal.Rptr. 590, 623 P.2d 151]; Solberg v. Superior Court, supra, 19 Cal.3d at p. 193; Kaiser Foundation Hospitals v. Superior Court (1987) 190 Cal.App.3d 721, 724 [ 235 Cal.Rptr. 630] ; Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 411-412 [ 138 Cal.Rptr. 43], cited in Le Louis v. Superior Court, supra, 209 Cal.App.3d at p. 676; People v. Bonds (1988) 200 Cal.App.3d 1018, 1021 [ 248 Cal.Rptr. 5].)

[T]he high court has recently extended the Batson holding and given a defendant, regardless of race, standing to object  to the racially discriminatory use of peremptory challenges. ( Powers v. Ohio (1991) 499 U.S. ___ [113 L.Ed.2d 411, 111 S.Ct. 1364].)  cited

LEARN MORE ABOUT THE ABUSE OF CIVIL RIGHTS AND DIRECT BREACH OF CONSTITUTIONAL RIGHTS BY THE NEFARIOUS JUDGE CLOUDED CLASUTRO.

Judge Israel Claustro

213 S Muroc Pl
Fullerton, CA 92833
(714) 351-5277

Judge Julie Palafox lives JOIN US FOR PEACEFUL PUBLIC ASSEMBLY AT HER HOME, maybe the local community should get together and let her know she should resign. 

WE WILL KEEP YOU POSTED ON THE DATE JUST REFRESH THE PAGE WEEKELY TO FIND THE DATE OF PEACEFUL PUBLIC PROTEST AT OUR LOCAL JUDGE THE CORRUPT JULIE A PALAFOX

213 S Muroc Pl Fullerton, CA 92833

We are going to be having a peaceful assembly soon, please email us to participate in your 1st amendment rights against tyrannical government. We are going to be holding a peaceful assembly in front of her home address to protest his illegal behavior and hand out leaflets and flyers.

1st amendment right to peaceful public assembly in front of any governement employees home to protest their abuse of civil rights and their sworn oath to the US Constituion

NO IMMUNITY 

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits Bransom v. Standard Hardware, Inc., 874 S.W.2d 919,1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.  “Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426. “Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677
(“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). (HEAD DISTRICT ATTORNEY & HEADMASTER JUDGE)

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984).  “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict his cannot protect us.  All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey.  1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

• – Article 1 of the Bill of Rights – guarantees freedom of religion-
  Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1.  Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost. 

JURISDICTION: NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

“No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.” Stump v. Sparkman, id., 435 U.S. 349. 

Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity. Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”

“In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)

“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.” Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution”.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges. Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.” Tort & Insurance Law Journal, Spring 1986 21 n3, p 509516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.”  San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases.  Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.” Maine v. Thiboutot, 448 U.S. 1 Mookini v. U.S., 303 U.S. 201 (1938) “The term ‘District Courts of the United States’ as used in the rules without an addition expressing a wider connotation, has its historic significance. It describes the constitutional courts created under Article 3 of the Constitution. Courts of the Territories are Legislative Courts, properly speaking, and are not district courts of the United States. We have often held that vesting a territorial court with jurisdiction similar to that vested in the district courts of the United States (98 U.S. 145) does not make it a ‘District Court of the United States’.

“Not only did the promulgating order use the term District Courts of the United States in its historic and proper sense, but the omission of provision for the application of the rules the territorial court and other courts mentioned in the authorizing act clearly
shows the limitation that was intended.”

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.”

Court will assign to common-law terms their common-law meaning unless legislature directs otherwise. People v. Young (1983) 340 N.W.2d 805,418 Mich. 1.

Common law, by constitution, is law of state. Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery.

Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.” Carolina v. U.S., 199 U.S. 437, 448 (1905). “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

When there is substantive issues to the court’s findings, and the court abused  its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court.
In so voiding the title of the United States, the Court declared:“No man in this country is so high that he is above the law. No officer of the law may set that law at  defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

THIS CLARIFY YOU DON’T GET TO GO AROUND CHANGING IT FOR YOURSELF 

28 U.S. Code § 144 – Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Standing on YOUR rights as a citizen to use my rights as a citizen

Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states:
“The “individual” may stand upon “his Constitutional Rights” as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

HALE V. HENKEL 201 U.S. 43 at 89 (1906)
Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case.  Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Miller v. U.S., 230 F.2d. 486,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S.  624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386]. We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employs of the sanctity of a man’s home, and the privacies of his life. As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Harris v. Harvey (1979) The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge’s normal duties (i.e. were “outside his jurisdiction”). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred with the jury’s decision. Judge Harvey petitioned the Seventh Circuit court for an en banc rehearing, which was denied. His petition to the Supreme Court was also denied. Harris v. Harvey is the first case in the United States where a sitting court judge has been sued and lost in a civil action; it is a binding precedent in the Seventh Circuit and is persuasive authority in the other circuits.

Supreme Court of Virginia v. Consumers Union (1980) Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under 42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it.^[22] The U.S. Supreme Court affirmed the Supreme Court of Virginia’s legislative immunity:

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.

State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.

Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”

SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”

Like Monopoly’s Bank Error in Your Favor Collect $200. A Error in a Judicial Proceeding is Always in your favor!

and if they harmed your civil rights it is a tortable offense as well meaning Civil lawsuit against the agency and/or the individual civil servant goverment employee

read below:

California Constitution Article VI – Judicial Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.

No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

https://www.thenalfa.org/blog/defense-prevailing-party-in-dvpa-case-dropped-by-plaintiff/

“Motion Hearing re attorney fees is denied with prejudice.”

erroneous prevailing party determination resulted in a miscarriage of justice….[B]ecause the respondent on petition for a domestic violence restraining order, the trial court had discretion to deny his request for prevailing party attorney fees under [Family Code] section 6344, subdivision (a).”

Art, VI, §13 of the state Constitution, reversal is called for only where an error has resulted “in a miscarriage of justice” which, she declared, did not occur.

you can download it directly from the goverment here https://www.courts.ca.gov/documents/article_vi_current.pdf

A Brief History of the California Constitution

THE California State Constitution is one of the oldest state constitutions still in use today; it’s 130 year history defined by revision, amendment and reform. The constitution’s long life, coupled with numerous partial-reform efforts, has resulted in what is today the world’s third longest constitution. With 512 amendments, the Constitution of California is eight times the length of the U.S. Constitution and has been criticized as “a perfect example of what a constitution ought not to be”1 and derided for being “more about legal technicalities than principles; an embarrassment for an otherwise cutting-edge state”.2

Statehood
IN 1848 the United States acquired California from Mexico under the terms and conditions of the Treaty of Guadeloupe Hidalgo. When a gold discovery at Sutter’s Mill the following year sparked the famous California Gold Rush, the U.S. Congress acted swiftly to grant California statehood. Lacking an effective territorial administration for its rapidly growing population, California’s leaders were pressed to draft a workable constitution. With the backing of Brigadier General Bennett Riley, California’s military governor, 48 delegates convened a Constitutional Convention in Monterey. After final ratification, the delegates submitted the constitution to Congress and on Sunday, September 9, 1850, California was admitted to the Union as the 31st State.

Heavily based on other state constitutions, the 1848 California Constitution proved inadequate to meet the long-term needs of the flourishing new state.3 Political leaders tried to amend the document via constitutional convention and the amendment process, however, during the 30 years which followed statehood, all three constitutional convention ballot proposals failed to win voter support and, of the many constitutional amendments proposed, only three became law. Finally, in 1877 the state legislature again submitted the question of convening a Constitutional Convention to the voters, this time it passed.

THE Constitutional Convention of 1878-79 produced California’s second constitution. Although technically surviving into the modern era, the document has done so weighted down with over 500 amendments and having been put through a 12 year revision process from 1966 to 1974. Although state constitutional conventions have been commonplace throughout U.S. history, the circumstances surrounding the 1878 California Convention resulted in features which would distinguish California’s constitution from other states. Convened amidst economic upheaval, the 1878 convention had an unusually strong focus on social and economic reform. As a result, whereas most constitutions limit themselves to detailing the broad legal principles on which future laws are to be made, the 1878 constitution instead addressed many subjects normally considered statutory in other states.4

In the decades after 1879, between its focus on statutory measures and legislative amendment, the California Constitution began to swell. California’s 1911 adoption of direct democracy through the ballot initiative and referendum gave citizens and interest groups the power to amend the constitution through individual initiatives. By 1930, the California constitution had grown to over 65,000 words (by comparison, the Constitution of the United States has about 4,500 words).5 The increasingly unwieldy nature of the document led to wholesale revision efforts, and on separate occasions in 1898, 1914, 1928, and 1929 the legislature put the question of a constitutional convention to the voters, where each time the measure was defeated. Finally, in 1935, voters approved convening a Constitutional Convention. However, in the midst of coping with the Great Depression, a convention was never convened.

Reform and Failure
FOLLOWING WWII, constitutional conventions surged in popularity as citizens sought to modernize obsolete and outdated state constitutions. Since 1945, Constitutional Conventions have been held in Alaska, Connecticut, Georgia, Hawaii, Illinois, Louisiana, Michigan, Missouri, Montana, Rhode Island.

Meanwhile in California, in 1947 the state legislature authorized a Joint Interim Committee to draft a new constitution. They were to be assisted by an Advisory Committee which counted among its members two ex-governors, constitutional experts, and representatives from a variety of major political organizations and interest groups.6 With such an illustrious and knowledgeable group, real constitutional reform seemed assured. However, interest groups were able to limit the work of the committee to simply eliminating obsolete language.7 As it became clear the committee had no teeth, public interest faded. Although most of the Joint Interim Committee’s final recommendations were approved by both the legislature and the voters, the recommendations amounted to little more than reducing the constitution’s length by about 14,000 unnecessary words. Even with the cuts, by the late 1950’s the California constitution had grown to over 80,000 words with 350 amendments, making it the second most longest in the country.

approved) measures to empower the legislature to propose substantial constitutional revisions in addition to individual amendments.  The legislature responded by appointing a new special body responsible solely for constitutional reform: the Constitution Revision Commission.

Over the course of almost a decade, the Constitution Revision Commission of 1964 to 1971 brought about some of the most substantial reforms of California’s constitution since the convention of 1878.  The commission’s members included lawyers, educators, businesspeople, labor leaders, civic leaders, and others, along with a dedicated staff.8 Proposition 1-A, a key amendment element of the commission’s work, authorized major refurbishments of California’s system of governance. Voters accepted many other amendments drafted by the commission as well, addressing various constitutional improvements and simplifications.  However, when it came to several particularly significant and controversial topics, such as budget reform and the amendment process, the commission found itself deadlocked between competing interest groups and was consequently unable to make significant recommendations. By the end of the process the Constitution Revision Commission, much like the Joint Interim Committee before it, had accomplished little more than reducing the length of the state’s constitution.

During the 1990’s Governor Pete Wilson appointed the second Constitutional Revision Commission.  Convened at a time of economic recession, the bipartisan group  had a specific mandate: examine the most controversial aspects of the constitution reform and suggest reforms.  Pointing out that the state possessed more than 7,000 units of government and over 32 million residents, yet was governed by a constitution written when the population was closer to 800,000, the commission argued that major substantive constitutional changes were needed.  In 1996 the commission released a list of constitutional recommendations aimed at improving accountability and responsiveness of government, eliminating barriers to efficiency and flexibility, and assuring that the state kept its fiscal house in order by maintaining a balanced budget.  However, by the time the commission issued its final report California’s economy had recovered, the pressure to immediately act faded, and the commission’s work was ultimately neglected.

“The People’s Way”
CALIFORNIA’S financial system had become so fragile and so complicated that  few expected it was capable of weathering a sudden crisis, such as deep and prolonged recession. The twin arrivals of the housing collapse and the banking crisis of 2008-2009, and the recession which has been left in its wake, has proved more than enough to bring California to the brink.
The scope of the failure has been spectacular. In April of 2008, even before the banking crisis was in full swing, the Governor announced a once-unimaginable budget deficit of $20.8 billion for fiscal year 2008-2009, which took Sacramento a record 80 days past the budget deadline to reconcile. However, after the budget’s eventual passage, Sacramento was immediately forced to grapple with the $24 billion projected 2009-2010 deficit, which immediately ballooned to $26 billion on midnight July 1st, on what has become the inevitable moment every year when the budget becomes past-due.

The collapse has reaped disastrous consequences on the state. At 11..6%, California’s unemployment rate is among the nation’s highest. Following California’s issuance of IOU’s to creditors to pay its bills, California’s bond rating was lowered to just above “junk” status. California’s public schools, once the nations best, long ago fell towards the bottom and are about to become even more crowded and even less well-equipped.

A May 2009 article appearing in The Economist magazine described California’s need for a new constitution as “both necessary and likely” and went on to mention the state’s thousands of overlapping government districts and marvel: it’s a “surprise anything works at all”.9 Today, calls for fundamental reform of the constitution have been revived amidst record deficits, record budget delays, and the state government’s record-low job approval rating. The system has proven incapable of reforming itself, and citizens have begun to explore ways to reform the system from the outside. When Governor Arnold Schwarzenegger was asked by the LA Times to comment on the push to call a Constitutional Convention, he called the effort “the only hope that I have”.10

Political dysfunction at the state level is not a new phenomenon. On numerous occasions throughout US history citizens of particular states have decided, when faced with such problems, to take the government back into their own hands.  During the 1963 Michigan Constitutional Convention, Wayne State University produced what has since become a classic black and white documentary about American democracy. At the closing moments of “Michigan Can Lead the Way”, the narrator editorialized:
“There had been fears the convention would be too conservative; fears that it would be too liberal; fears that it would be racked by politics…Pro-labor or pro-farmer or pro-business…Favoring the present, trapped in the past, lost in the future. The convention had been all of these, it was not an assemblage of angels. It was a convention of men and women. Taking the best it could agree on for our time and for our people…This was the process. Sometimes calm, sometimes not so calm. Either way, it was the people’s way. It was the way of a free democracy.”

——————-

1 E. Dotson Wilson and Brian S. Ebbert. California’s Legislature (Sacramento: California   State Legislature, Office of the Chief Clerk of the Assembly, 1998), 16.
2 Lascher, Edward. “It’s too easy to amend California’s Constitution.” Editorial. Los Angeles Times 4 Feb. 2009. 15 July 2009 <http://www.latimes.com/news/opinion/commentary/la-oe-hodson4-2009feb04,0,983208.story>.
3 Lee, Eugene C. “The Revision of California’s Constitution”. California Policy Seminar Brief, Vol. 3, No. 3. (April) 1991): 1.
4 Lee, Eugene C. “The Revision of California’s Constitution,” California Policy Seminar Brief, Vol. 3, No. 3     (April 1991): p. 1.
5 Lee, Eugene C. p. 2.
6 Lee, Eugene C. p. 3.
7 Hyink, Bernard L. “California Revises its Constitution”. The Western Political Quarterly, Vol. 22, No. 3 (September 1969): p. 640.
8 Lee, Eugene C. “The Revision of California’s Constitution,” California Policy Seminar Brief, Vol. 3, No. 3     (April 1991): p. 4.
9 “The Ungovernable State”. The Economist, May 14th 2009. http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=13649050
10 Goldmacher, Shane. “Schwarzenegger threatens to shut down state government.” Los Angeles Times, June 11, 2009. Accessed July 20, 2009. http://articles.latimes.com/2009/jun/11/local/me-arnold-budget11

source

learn more about TORT here:

What is a Tort?

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

Bidna v. Rosen (1993) – Family Law Tort – Civil Malicious Prosecution

WRITS and WRIT Types in the United States

Recoverable Damages Under 42 U.S.C. Section 1983

42 U.S. Code § 1983 – Civil action for deprivation of rights

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof

When The Prosecution Drops Charges

Thompson v. Clark – Malicious Prosecution claim under § 42 U.S.C. 1983 for malicious prosecution

Functions and Duties of the Prosecutor – Prosecution Conduct

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

What is Abuse of Process? When the Government Fails Us

Prosecutorial Investigations

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully 

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Police BodyCam Footage Release – California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Lawyers’ Obligation of Candor to Opposing Parties and Third Parties

Seal & Destroy a Criminal Record

Oath and Obligation’s of Attorney – California Lawyers

Epic SCOTUS Decisions

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

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NICKOLAS v. San Diego County Health and Human Services Agency, Real Party in Interest.

DENIED BUT READ THE (RED) Maintaining Court Integrity

In some cases, original sentences and subsequent orders that occur out of the sentencing of a convicted defendant, can be overturned, because evidence had not been known at the time of a subsequent order.
In NICKOLAS v. San Diego County Health and Human Services Agency, defendant Nickolas F. who was serving time in a California jail, found out he had been denied family reunification services that would allow him to take back his children once he was released from jail. Initially, the court saw that there was merit to Nickolas’s procedural objection and claim.

If the facts of the case had been different, such as Nickolas was not a documented child abuser, he would have received the chance for family reunification services but he would have received a fair WIC 300B trial to remove custody.

Court of Appeal, Fourth District, Division 1, California.

NICKOLAS F., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego County Health and Human Services Agency, Real Party in Interest.

No. D048652. Decided: October 25, 2006

Law Offices of Christopher R. Booth, Christopher R. Booth, and Robert Gulemi for Petitioner. John J. Sansone, County Counsel, John E. Phillips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Respondent. No Appearance for Real Party In Interest. Steven J. Carroll, Public Defender, and Dana Feuling, Deputy Public Defender, for Minors.

INTRODUCTION

Nickolas F. seeks writ review of juvenile court orders made at the 12-month review hearing terminating family reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.¹  Nickolas contends that the juvenile court erred when it granted petitions for modification, filed pursuant to section 388, to deny him family reunification services.   He maintains that under section 385, the juvenile court does not have the discretion to modify its previous orders unless the court first determines either that there has been a change of circumstances, or that new evidence justifies the modification, as required under section 388.   Nickolas further contends that he did not receive reasonable reunification services as the court initially ordered, and that the court’s modification of the disposition order substantially impaired his rights.

We conclude that the juvenile court has the statutory authority, pursuant to section 385 to change, modify, or set aside “[a]ny order made by the court in the case of any person subject to its jurisdiction” sua sponte,² after providing the parties with notice and the opportunity to be heard.   (LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1104-1108, 29 Cal.Rptr.3d 249, 112 P.3d 636 (LeFrancois ).)   The juvenile court’s authority to modify a previous order that  the court independently recognizes as having been erroneously, inadvertently or improvidently made is not contingent on a party seeking a modification pursuant to section 388.

We further conclude that the juvenile court has inherent authority, pursuant to California Constitution, article VI, section 1, to reconsider its prior interim orders when necessary to prevent a miscarriage of justice, provided that in so doing, the court does not violate the constitutional rights of the parties.

Although a section 388 petition for modification is the appropriate procedural mechanism to use when a party seeks a modification of a court order based on new evidence or changed circumstances, we are reluctant to endorse a procedure in which the court requests that a party file a petition pursuant to section 388 in order to allow the court to modify an order it considers to have been erroneously, inadvertently or improvidently made.   Proceeding in this manner is particularly problematic where, as here, the evidence presented at the disposition hearing was sufficient to apprise the juvenile court that section 361.5, subdivision (b), (c) or (e) might apply to preclude a routine order for reunification services.   However, we conclude that the court’s denial of reunification services to Nickolas, through the procedural mechanism of a section 388 petition, did not result in a miscarriage of justice.   Thus, any error was harmless.   Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, Nickolas’s sons, Joshua F. and Matthew G. (together, the children), who were then ages three years, and 18 months, respectively, were detained by the San Diego Health and Human Services Agency (Agency) after their maternal half-brother tested positive for methamphetamine at birth.   The Agency filed petitions pursuant to section 300, subdivision (b) alleging that there was a substantial risk that the children would suffer serious physical harm or illness due to their mother’s drug use, unsanitary conditions in the home, and her inability to care for the children.   The petitions further alleged that Nickolas was unable to protect and supervise the children.

In its jurisdiction and disposition report, the Agency reported that it had learned from E.G., the children’s mother, that Nickolas was serving a five-year sentence in Arizona for abusing the children’s paternal half-brother.   That child suffered a broken hip, collarbone and ribs, and other injuries as a result of abuse by Nickolas.   E.G. told the social worker that Nickolas had introduced her to methamphetamine use, and that he had physically abused her during their marriage.   The Agency also reported that Nickolas had a criminal record that included charges or convictions for aggravated assault on a minor,  possession and use of a dangerous drug, unlawful sexual intercourse with a minor under age 14, oral copulation with a minor under age 16, and burglary.³

The Agency contacted Nickolas in the Arizona state prison system prior to the jurisdiction and disposition hearing.   In a letter to the social worker dated April 1, 2005, Nickolas stated that he would be incarcerated until May or August 2008 and asked the Agency to consider placing Joshua with his mother.⁴

The Agency did not include Nicholas’s expected release date in its report to the court.   While the Agency did not develop a case plan for Nickolas, it did not explicitly recommend that the court deny Nickolas reunification services.   At the disposition hearing, the court ordered the Agency to provide reunification services to the parents “consistent with their case plan(s)” ⁵ and specifically ordered the Agency to provide services to “Father [F.]”.

In its six-month status review report, the Agency stated that it had had “no contact whatsoever” with Nickolas.   It had not prepared a case plan for Nickolas, nor had it offered him services.   In an addendum report prepared for the November 2005 six-month review hearing, the Agency included a letter from Nickolas dated November 6, 2005, in which he stated that he was scheduled to be released in August 2008, and again asked the Agency to evaluate his mother for placement of the children.   Despite the Agency’s report of having had no contact with Nickolas, the court found that reasonable services had been offered or provided to “the parent(s),” and continued services as previously ordered.⁶

In April 2006, the case was assigned to a new social worker.   The day before the scheduled 12-month review hearing, the social worker sent Nickolas a prison parenting packet and a letter inquiring about his access to programs and services at the facility in which he was incarcerated.   In a letter to the social worker dated April 15, 2006, Nickolas provided information about programs that were available at the prison, and expressed his willingness to participate in services.   He reiterated his wish to involve his mother in the children’s care.

The social worker contacted Nickolas’s mother, who was the guardian of his youngest son.   She told the social worker that as a result of physical abuse, that child had suffered a skull fracture, had developed hydrocephalus,⁷ and had been diagnosed with mild mental retardation.

In its April 2006 status review report to the court, the Agency recommended that the court terminate family reunification services and set a permanency plan hearing under section 366.26.   E.G. had not resolved her substance abuse issues.   Her cousin planned to adopt the children’s maternal half-brother and was interested in adopting Joshua and Matthew as well.   E.G. believed the proposed adoption by a family member was in the children’s best interests, and she did not intend to contest the Agency’s recommendations.

At the 12-month review hearing, Nickolas moved for a directed verdict, arguing that the Agency had not met its burden to show that it had provided him reasonable reunification services.   The court denied the motion.   The court reasoned that even under the best circumstances, it would not be possible to return the children to Nickolas’s custody, due to his incarceration.   The court also determined that the Agency had provided services to Nickolas in that it had made efforts to locate Nickolas and to advise him of the children’s status throughout the proceedings.   The court found that under the totality of the circumstances, the Agency had provided services to Nickolas and that the services provided were reasonable.

Nickolas, through his counsel, objected to the finding that he had been provided reasonable services.   Nickolas’s attorney pointed out that at the disposition hearing, the court had specifically ordered the Agency to provide Nickolas reunification services, and argued that the Agency had a duty to  follow the orders of the court.   Counsel maintained that the evidence established that the Agency had not offered or provided reasonable reunification services to Nickolas, and pointed out that the court’s orders requiring the Agency to provide services remained in effect because no other party had filed a formal petition pursuant to section 388 to modify the orders granting Nickolas reunification services.

Although the court believed its judgment as to the substantive issue was correct, it found that Nickolas’s procedural objection had merit.   The court continued the proceedings in order to allow the Agency time to file a petition for modification.   Both the Agency and E.G. subsequently filed petitions pursuant to section 388 requesting that the court modify its disposition orders to deny reunification services to Nickolas.   In her petition, E.G. alleged that there was new evidence in that, at the time of the disposition hearing, the court was not aware of the details of the crime for which Nickolas was incarcerated or his release date.   She also argued that circumstances had changed because she now agreed to submit to the proposed adoption of the children by her cousin.   E.G. asserted that providing reunification services to Nickolas would be detrimental to the children, and asked the court to deny Nickolas reunification services under section 361.5, subdivision (e)(1).⁸  The Agency alleged in its petition that there was new evidence before the court because the court had not had information at the disposition hearing concerning “the exact nature” of Nickolas’s crime or the length of his prison sentence in Arizona.   The Agency requested that the court deny reunification services to Nickolas pursuant to section 361.5, subdivisions (b)(12) ⁹ and (e)(1).

In May 2006, at a combined hearing on the merits of the modification petitions and the continued 12-month review, the Agency presented evidence expanding on the minimal information it had presented to the court at the disposition hearing regarding Nickolas’s conviction and incarceration.   The  evidence established that Nickolas had assaulted his then four-month-old son, fracturing the child’s ribs, arm and skull.   The medical examination revealed that the child had multiple skull fractures that were in various stages of healing.   As a result of complications from the most recent injuries, the child had suffered brain swelling that caused mental retardation.   The child had to wear a brace to hold his skull together.

Nicholas was indicted on three counts of felony child abuse for causing serious physical injury to the child, and one count of felony child abuse for failing to obtain medical treatment for the child’s injuries.   After the suicide of the child’s mother, who would have been a material witness at Nickolas’s criminal trial, Nickolas pled guilty to one felony count of attempted child abuse, pursuant to a plea agreement.   He was sentenced in February 2005 to five years in prison, with credit for time served, and eight months of community supervision.

After hearing this evidence, the court stated that at the time it ordered the Agency to provide reunification services to Nickolas, it was not aware of the grievousness of Nickolas’s abuse of his son because the information the Agency presented at the disposition hearing was incomplete.   The court determined that although the evidence pertaining to Nickolas’s abuse of the children’s half-brother could have been known at the time of the disposition hearing, it was in fact not known.   On this basis, the court concluded that the petitioners had met their burden to show that there was “new evidence,” as required by section 388, subdivision (a).   The court also found that the requested modification was in the children’s best interests.   Specifically, the court concluded that providing reunification services to Nickolas would be detrimental to the children because of their ages, the lack of a parent-child bond with Nickolas, the anticipated length of his incarceration, and the nature of Nickolas’s crime against his other son.   The court modified the disposition order to deny Nickolas reunification services under section 361.5, subdivision (e)(1), terminated family reunification services to E.G., and set a permanency plan hearing pursuant to section 366.26.

Nickolas petitions for review of the court’s orders. (§ 366.26, subd. (l);  Cal. Rules of Court, rule 38.1.¹⁰ )  This court issued an order to show cause, and the Agency responded.   The parties waived oral argument.

APPELLATE PROCEEDINGS

On September 1, 2006, this court asked the parties to submit simultaneous letter briefs within 10 days, addressing the following:

“Assuming arguendo that a section 388 petition was not the proper procedural mechanism by which to modify the court’s disposition order under the particular circumstances in this case, is there constitutional or other statutory authority that would permit the juvenile court to modify its prior order?

“Did the juvenile court have the inherent authority to modify its disposition order sua sponte if it believed that order was erroneous, after providing the parties with notice and an opportunity to be heard?”

On September 12, 2006, we granted Nickolas leave to file a supplemental reply brief.

DISCUSSION

IThe Petition for Writ of Mandate Is Not Moot

The Agency requests that Nickolas’s petition be dismissed as moot. It argues that because the juvenile court did not explicitly order the Agency to continue to provide reunification services to Nickolas between the six-month and the 12-month reviews, the court effectively terminated Nickolas’s reunification services at the six-month review hearing.   The Agency posits that the court was not required to consider modifying the disposition order at the 12-month review hearing pursuant to section 388 because Nickolas was not entitled to receive reunification services after the six-month review hearing and that the petition for relief is therefore moot.   We reject this argument.

Unless the court specifically modifies the terms and conditions of a parent’s reunification services at the six-month review hearing, “any reunification services previously ordered shall continue to be offered to the parent.” (§ 366.21, subd. (e);  In re Alanna A. (2005) 135 Cal.App.4th 555, 564, 37 Cal.Rptr.3d 579.)   Here, pursuant to the court’s order at the disposition hearing, the Agency had a continuing duty to develop a case plan for Nickolas and to offer or provide him reunification services during the second six-month review period.  (See fn. 13, post.)   For these reasons, the petition is not moot.

Nickolas contends that the court’s finding that he was provided reasonable reunification services is not supported by substantial evidence.   The Agency concedes that it did not provide Nickolas with reunification services, but argues that the court implicitly withdrew its finding that Nickolas was provided reasonable services when it asked the Agency to file a petition for modification under section 388.  (See In re Alanna A., supra, 135 Cal.App.4th at p. 563 & fn. 6, 37 Cal.Rptr.3d 579.) Because we conclude that the court’s modification of its disposition order to deny Nickolas reunification services, through the procedural mechanism of section 388, did not result in a miscarriage of justice (see part III, post ), we need not address this issue.

II

The Court Did Not Err in Modifying the Disposition Order to Deny Nickolas Reunification ServicesA. The Parties’ Positions

Nickolas contends that the juvenile court abused its discretion when it granted the petitions for  modification under section 388, because neither the Agency nor the children’s mother presented any “change of circumstance or new evidence” as required by section 388, subdivision (a).   Drawing an analogy to case law interpreting Code of Civil Procedure section 1008, subdivision (a), Nickolas argues that a petitioner who seeks modification of a previous order “must be held to a basic measure of diligence, and cannot introduce evidence at the eleventh hour that was available all along, to the unjust detriment of another party.”

While the Agency concedes an initial lack of diligence, it argues that the information it presented to the court at the hearing for modification of the court’s disposition orders nevertheless constitutes “new evidence” within the meaning of section 388, subdivision (a), and also maintains that the proposed modification was in the children’s best interests.   The Agency thus contends that the court correctly modified the disposition orders.

The Agency further argues that the juvenile court has the statutory authority, pursuant to section 385, to change, modify, or set aside any previous order, sua sponte.   Citing Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 185, 121 Cal.Rptr.2d 405 (Case v. Lazben ), the Agency also contends that in extraordinary circumstances, when necessary to avoid a miscarriage of justice, the California Constitution confers on the juvenile court the inherent authority “to repair an erroneous order or judgment,” provided that in so doing, the court weighs and protects the constitutional rights of the parties.

Nickolas responds that the juvenile court may exercise the authority it is granted under article VI, section 1 of the California Constitution only in the absence of any previously established procedural rule, citing In re Amber S. (1993) 15 Cal.App.4th 1260, 1264, 19 Cal.Rptr.2d 404.   He argues that, by its express terms, section 385 limits the juvenile court’s authority to modify  its prior orders to the procedural mechanism of a petition for modification filed pursuant to section 388, and notes that Code of Civil Procedure section 128, subdivision (a)(8) authorizes the juvenile court to correct only clerical errors on its own motion, as discussed in Bloniarz v. Roloson (1969) 70 Cal.2d 143, 148, 74 Cal.Rptr. 285, 449 P.2d 221.   Citing Hess v. Gross (1943) 56 Cal.App.2d 529, 532, 133 P.2d 1 and Smith v. Superior Court (1981) 115 Cal.App.3d 285, 171 Cal.Rptr. 387, Nickolas argues that the juvenile court did not have authority to modify the disposition order because the modification did not constitute the correction of a clerical error, and seriously prejudiced his constitutional interests in family reunification.

We examine these arguments, bearing in mind that “[t]he objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.   [Citations.]”  (In re Marilyn H. (1993) 5 Cal.4th 295, 307, 19 Cal.Rptr.2d 544, 851 P.2d 826 (Marilyn H.)

B. Under the Circumstances Presented in This Case, Section 388 Was Not the Appropriate Procedural Mechanism by Which to Modify the Disposition Order

Section 388 applies when “any parent or other person having an interest” in a dependent child, or the child, (collectively, party) seeks a modification of a previous order based on a change of circumstances or new evidence and the pertinent statutes do not otherwise provide for modification.  (See In re Lance V. (2001) 90 Cal.App.4th 668, 675, 108 Cal.Rptr.2d 847;  Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 879, 101 Cal.Rptr.2d 187.)   It is the appropriate procedural mechanism to use when a party seeks modification of a previous order.  (See Marilyn H., supra, 5 Cal.4th at p. 305, 19 Cal.Rptr.2d 544, 851 P.2d 826.)   However, under the circumstances presented in this case, a section 388 petition was not the appropriate means by which to modify the disposition order.

At the 12-month review hearing, the juvenile court realized that even the minimal evidence pertaining to Nickolas’s conviction for child abuse and his incarceration that was presented at the disposition hearing should have caused the court to examine the facts underlying the conviction, and determine whether providing reunification services to Nickolas would be detrimental to the children pursuant to section 361.5, subdivision (e)(1).   We agree with the trial court’s assessment that it improvidently directed the Agency to provide reunification services to Nickolas at the disposition hearing.

The information in the jurisdiction and disposition report concerning Nickolas’s criminal history and incarceration should also have put the court  on notice that section 361.5, subdivision (b)(12) might apply to Nickolas, and that the court should not issue a routine order ¹¹ that the Agency provide Nickolas reunification services. Rather, at a minimum, the court should have considered whether reunification was in the children’s best interests pursuant to section 361.5, subdivision (c).

Section 361.5, subdivision (c) states in pertinent part:  “The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.”  (Emphasis added.)   When this subdivision applies, the juvenile court lacks the authority to order reunification unless it expressly makes such a finding by the requisite standard of proof.  (Ibid.)

Section 361.5, subdivision (b)(12) provides that reunification services need not be provided to a parent who has been convicted of a violent felony, as defined in Penal Code section 667.5.   The definition of a “violent felony” includes rape, oral copulation by force, lewd acts on a child under the age of 14 years, and “any felony in which the defendant inflicts great bodily injury on any person other than an accomplice.”  (Pen.Code, § 667.5, subd. (c)(8).)  “Great bodily injury” means a significant or substantial physical injury.  (Pen.Code, § 12022.7, subd. (f).)

The jurisdiction and disposition report included information that Nickolas had inflicted significant physical injury on the children’s paternal half-brother, including a broken hip, a broken collar bone and rib, and other fractures, and that Nickolas was currently incarcerated for that crime.   Other information in the report suggested that Nickolas might have been convicted of unlawful sexual intercourse with a minor under age 14 and oral copulation with a minor under age 16.¹²

When information presented at the disposition hearing suggests that the court does not have the authority to order reunification pursuant to section 361.5, subdivision (c) unless the court makes an express finding by clear and convincing evidence that reunification is in the child’s best interests, the juvenile court must not order reunification services without making the required finding.   This is particularly true where, as in this case, the lack of a case plan indicates that the Agency has not yet completed its investigation and assessment.

The Agency has a duty to apprise the court of all relevant facts and circumstances when issuing reports. (§ 328;  In re Joshua G. (2005) 129 Cal.App.4th 189, 197, 28 Cal.Rptr.3d 213 citing In re John F. (1994) 27 Cal.App.4th 1365, 1377-1378, 33 Cal.Rptr.2d 225.)  “At each stage of the dependency proceeding, the social services agency is statutorily mandated to prepare social study reports and make recommendations to assist the court. (§§ 280, 281, 319, subd. (b), 358, subd. (b), 358.1, 361.5, subd. (c), 364, 365, 366.21, subds. (c), (e), (f), 366.22, subd. (a), 366.26, subd. (b).)  In this role, the social services agency acts as an impartial arm of the court in assisting the court to carry out the Juvenile Court Law.” (In re Ashley M. (2003) 114 Cal.App.4th 1, 7-8, 7 Cal.Rptr.3d 237 citing In re Malinda S. (1990) 51 Cal.3d 368, 377, fn. 8, 272 Cal.Rptr. 787, 795 P.2d 1244 and Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2003) § 2.63[1], p. 2-121-122;  see also §§ 309, 319, subd.(a).)

The record in this case leaves no doubt that the evidence that was presented to the court at the section 388 hearing was available prior to the disposition hearing.   Nickolas’s crime, conviction and sentencing all preceded the children’s detention.   At the time of the disposition hearing, the Agency had in its possession information about Nickolas’s conviction and his term of imprisonment, but failed to fully report that information to the court.   The Agency did not request that the court determine whether providing services to Nickolas would be detrimental to the children under section 361.5, subdivision (e)(1), or whether section 361.5, subdivision (c) applied to prohibit the court from entering a routine order for reunification services for Nickolas.

The juvenile court has an obligation to ensure that the Agency, as an arm of the court, has followed required statutory procedures, which are designed to provide the court with the information and material it needs in order to make a reasoned and informed judgment.¹³ (§§ 280, 281, 300.2, 350, subd. (a)(1).)   In this case, the court belatedly, but independently, realized that the evidence presented at the disposition hearing, although minimal, was sufficient to apprise the court that it should not have issued a routine order for reunification services pursuant to section 361.5, subdivision (e)(1).   In order to remedy this error, the court requested that the parties seek a modification pursuant to section 388 on the ground that there was new evidence pertinent to the issue. At the hearing on the section 388 petitions, the Agency presented facts that it had not previously presented to the court, such as the age of the child Nickolas assaulted, the full extent of the injuries the child suffered as a result of the assault, and the particulars of the criminal charges against Nickolas, his plea bargain, and his expected release date.¹⁴

Where, as here, the court independently recognizes that it improvidently directed the Agency to provide reunification services to a parent, requiring that a party file a petition under section 388 before the court may modify the order, or worse, requiring that the parties comply with the erroneous order, would constitute a waste of time and resources.  (Case v. Lazben, supra, 99 Cal.App.4th at p. 187, 121 Cal.Rptr.2d 405 [“Forcing the parties to proceed where there is recognized error in the case would result in an enormous waste of the court’s and the parties’ resources”].)   We conclude that in dependency proceedings, when the court recognizes that a previous order was erroneously, inadvertently or improvidently granted, it is not necessary that a party file a section 388 petition in order to provide the court with the authority to modify that order.

C. The Juvenile Court Has Both Statutory and Constitutional Authority to Modify Its Prior Orders Sua Sponte

All courts have inherent powers that enable them to carry out their duties and ensure the orderly administration of justice.   The inherent powers of courts are derived from California Constitution, article VI, section 1, and are not dependent on statute.  (Le Francois, supra, 35 Cal.4th at pp. 1101-1102, 29 Cal.Rptr.3d 249, 112 P.3d 636;  Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267, 279 Cal.Rptr. 576, 807 P.2d 418;  Case v. Lazben, supra, 99 Cal.App.4th at p. 185, 121 Cal.Rptr.2d 405;  In re Amber S., supra, 15 Cal.App.4th at pp. 1264-1265, 19 Cal.Rptr.2d 404.)   The juvenile court derives its general judicial authority from the California Constitution.  (In re Amber S., supra, at pp. 1264-1265, 19 Cal.Rptr.2d 404.)

While article VI, section 1 of the California Constitution vests the court with inherent authority to decide controversies and control the proceedings, the Legislature may regulate the exercise of the court’s constitutional powers by all reasonable means.  (LeFrancois, supra, 35 Cal.4th at p. 1102-1103, 29 Cal.Rptr.3d 249, 112 P.3d 636;  Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 58-59, 51  Cal.Rptr.2d 837, 913 P.2d 1046.)   However, in exercising its power, the Legislature may not defeat or materially impair the court’s exercise of its inherent constitutional authority to reconsider its own interim orders.  (LeFrancois, supra, at p. 1097, 29 Cal.Rptr.3d 249, 112 P.3d 636;  People v. Bunn (2002) 27 Cal.4th 1, 14-16, 115 Cal.Rptr.2d 192, 37 P.3d 380.)   Such regulation violates the separation of powers doctrine embodied in the California Constitution.  (LeFrancois, supra, at pp. 1097, 1103, 1007, 29 Cal.Rptr.3d 249, 112 P.3d 636.)

The juvenile court’s jurisdiction is limited to hearing cases concerning delinquent and dependent children.   The Legislature has vested the juvenile court with the authority to fashion orders concerning the welfare of a dependent or a delinquent child. (§§ 19, 202, 245.5;  see §§ 300.2, 350, subd. (a).)  Within its limited jurisdiction, the authority of the juvenile court is extensive:  “In addition to all other powers granted by law, the juvenile court may direct all such orders to the parent, parents, or guardian of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of or for the rehabilitation of the minor.” (§ 245.5.) Recognizing the juvenile court’s special role in dependency proceedings, the California Supreme Court has noted, “The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child’s circumstances when making decisions regarding the child.”  (In re Chantal S. (1996) 13 Cal.4th 196, 201, 51 Cal.Rptr.2d 866, 913 P.2d 1075.)

This general grant of authority is tempered by more specific statutes.   A statutory mechanism is the preferred means by which to modify a prior order of the court.  (See In re Dennis H. (2001) 88 Cal.App.4th 94, 102, 105 Cal.Rptr.2d 705.)   The Legislature has defined the juvenile court’s statutory authority to modify its previous orders in Welfare and Institutions Code, article 12, sections 385 through 391.  (See Marilyn H., supra, 5 Cal.4th at p. 305, 19 Cal.Rptr.2d 544, 851 P.2d 826 [briefly describing §§ 385 through 390].) ¹⁵

Section 385 provides that any court order in a dependency case “may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.”   Section 386 mandates that the court refrain from exercising its discretion under section 385 unless the court has provided prior notice of the application to the social worker and the child’s counsel of record or, if there is no counsel of record, to the child and his parent or guardian.¹⁶  As  discussed in part I.B, ante, section 388 provides that a party may seek a modification of a previous order by filing a verified petition based on new evidence or changed circumstances.

Nickolas maintains that section 385 does not grant the juvenile court the authority to modify a previous order sua sponte.   He argues that the phrase “subject to such procedural requirements as are imposed by this article” means that the court may not modify a prior order unless a party or interested person has filed a petition for modification pursuant to section 388.   In support of this interpretation, he points to Marilyn H., in which the California Supreme Court stated, “Section 385 clearly does not give the juvenile court the discretion to modify its previous order in the absence of compliance with the procedural requirements set forth in article 12, which includes section 388’s requirement of filing a verified petition for modification based on changed circumstances.”  (Marilyn H., supra, 5 Cal.4th at p. 305, 19 Cal.Rptr.2d 544, 851 P.2d 826.)

The California Supreme Court’s holding in Marilyn H. was more nuanced than Nickolas posits.   The phrase “subject to such procedural requirements as are imposed by this article” does not mean that the procedures set forth in section 388 are necessarily imposed on the court every time the court contemplates modifying a prior order.   Further, to the extent the holding in Marilyn H. can be interpreted to preclude the juvenile court from modifying a prior order sua sponte, the validity of that reasoning has been disapproved by the more recent decision of the California Supreme Court in LeFrancois, supra, 35 Cal.4th 1094, 29 Cal.Rptr.3d 249, 112 P.3d 636.

In Marilyn H., the parent asserted that even though section 366.26 expressly limits the actions the court may take at that hearing to select and implement the child’s permanency plan, section 385 gives the juvenile court the inherent discretion to modify the prior order referring the case to a permanency plan hearing, and to consider returning the child to parental custody.  (Marilyn H., supra, 5 Cal.4th at p. 300, 19 Cal.Rptr.2d 544, 851 P.2d 826.)   The California Supreme Court held that pursuant to the statutory framework of Welfare and Institutions Code, article 12, when a parent asks the court to modify a previous order based on changed circumstances, the parent must proceed under section 388.  (Marilyn H., at p. 305, 19 Cal.Rptr.2d 544, 851 P.2d 826.)   Thus, the holding of Marilyn H. applies to a request by a parent that the court modify a prior order, and does not apply when the court determines on its own that modification of a prior order is required.

The difference between Nickolas’s argument and the California Supreme Court’s holding in Marilyn H. becomes evident when both are reduced to syllogisms.   Nickolas argues:

Section 385 requires that the court follow such procedures as are imposed by Welfare and Institutions Code, article 12.

Section 388 describes a procedural requirement that is imposed by Welfare and Institutions Code, article 12.

Therefore, the court must follow the procedure set forth in section 388.17

However, the Marilyn H. court reasoned:

Section 385 requires that the court follow such procedures as are imposed by Welfare and Institutions Code, article 12.

Section 388 describes a procedural requirement that is imposed by Welfare and Institutions Code, article 12 when a party seeks a modification of a prior order based on new evidence or changed circumstance.

Therefore, the court must follow the procedure set forth in section 388 when a party seeks a modification of a prior order based on new evidence or changed circumstance.  (Marilyn H., supra, 5 Cal.4th at p. 305, 19 Cal.Rptr.2d 544, 851 P.2d 826.)

When the juvenile court contemplates modifying a previous order, either pursuant to a request by a party or on the court’s own motion, section 385 does not impose any particular procedural requirement described in Welfare and Institutions Code, article 12.   Rather, as indicated by the phrase “subject to such procedural requirements as are imposed by this article,” the type of procedural mechanism required by section 385 depends on the type of modification sought. (§ 385, italics added.)   The use of the word “such” means that the procedural requirement is “definite but not specified.”  (Random House Dict. (2d ed.1993) p. 18199, col. 3;  see also Black’s Law Dict. (8th ed.2004) p. 1473, col. 2 [“of this or that kind”].)   By its terms, section 388 applies only when a party petitions the court for modification based on new  evidence or changed circumstances.   Nothing in Marilyn H. or in the plain language of section 385 indicates that the Legislature intended to limit the juvenile court’s authority to reconsider its previous orders to circumstances in which a party has filed a petition pursuant to section 388.

This conclusion is consistent with the California Supreme Court’s reasoning in LeFrancois.   In that case, the court rejected the argument that Code of Civil Procedure section 437c, subdivision (f)(2), which governs motions for summary judgment, and Code of Civil Procedure section 1008, which generally governs procedures for reconsideration of any previous interim orders, prohibit the court from reconsidering its previous interim orders on its own motion.¹⁸  The LeFrancois court held that statutes that deal with reconsideration of motions may constitutionally limit the ability of the parties to file repetitive motions, but may not impede the trial court’s ability to reconsider its prior interim orders on its own motion so that it may correct its own errors.  (LeFrancois, supra, 35 Cal.4th at pp. 1108-1109, 29 Cal.Rptr.3d 249, 112 P.3d 636.)   The court reasoned that if the statutes at issue were interpreted to limit the trial court’s authority, the statutes would “ ‘directly and materially impair and defeat the court’s most basic functions, exercising its discretion to rule upon controversies between the parties and ensuring the orderly administration of justice,’ ” and would thus violate the separation of powers doctrine embodied in the California Constitution.  (LeFrancois, supra, at pp. 1104-1105, 29 Cal.Rptr.3d 249, 112 P.3d 636 quoting Case v. Lazben, supra, 99 Cal.App.4th at p. 185, 121 Cal.Rptr.2d 405 [“Miscarriage of justice results where a court is unable to correct its own perceived legal errors”].)

The California Supreme Court’s rationale in LeFrancois applies with equal force to Nickolas’s argument that section 385 limits the court’s ability to reconsider its prior rulings sua sponte.  Code of Civil Procedure section 1008 and Welfare and Institutions Code section 385 are similar in that each governs procedures for reconsideration of previous interim orders.   Interpreted as Nickolas suggests, section 385 would significantly diminish the juvenile court’s general authority to ensure the orderly administration of justice, and would undermine the court’s statutory authority to direct such orders as the  court “deems necessary and proper for the best interests” of the dependent child. (§ 245.5.) A legislative restriction of a juvenile court’s ability to reconsider its own rulings sua sponte would impair and defeat the juvenile court’s most basic functions:  to meet its special responsibility to determine the best interests of the dependent child, to exercise its discretion to rule upon controversies among the parties, and to ensure the orderly administration of justice.  (Cf. LeFrancois, supra, 35 Cal.4th at p. 1104, 29 Cal.Rptr.3d 249, 112 P.3d 636.)

Under Nickolas’s reading, if a juvenile court realizes that it has misapplied the law, or that the court’s processes have otherwise been deficient,¹⁹ the court “ ‘is prohibited from revisiting its ruling ․ no matter how obvious its error or how draconian the effects of its misstep.’ ”  (LeFrancois, supra, 35 Cal.4th at p. 1105, 29 Cal.Rptr.3d 249, 112 P.3d 636 quoting Case v. Lazben, supra, 99 Cal.App.4th at p. 185, 121 Cal.Rptr.2d 405.)   If section 385 were interpreted to limit the court’s ability to reconsider its own ruling, it would violate the separation of powers doctrine embodied in the California Constitution (cf.  LeFrancois, supra, at pp. 1104-1105, 29 Cal.Rptr.3d 249, 112 P.3d 636) and would leave the juvenile court without any statutory authority by which to correct its own errors on its own motion.

In an effort to avoid constitutional difficulties, Nickolas posits that the juvenile court has the statutory authority to correct its previous orders, on its own motion, pursuant to Code of Civil Procedure section 128, subdivision (a)(8), but contends that this authority is limited to the correction of clerical errors.   The argument that Code of Civil Procedure section 128, subdivision (a)(8) applies to modifications of prior orders in juvenile court is without merit.

This court has previously held that Code of Civil Procedure section 128, subdivision (a)(8) is inapplicable in dependency proceedings at the trial court level.  (In re Joshua G., supra, 129 Cal.App.4th at p. 198, 28 Cal.Rptr.3d 213.)   Dependency proceedings are special proceedings that are governed, in general, by their own rules and statutes. (§ 300 et seq.;   rule 1400 et seq.;  In re Chantal S., supra, 13 Cal.4th 196, 51 Cal.Rptr.2d 866, 913 P.2d 1075.)   Unless made expressly applicable, statutes that govern civil cases do not apply to dependency actions.  (In re Joshua G., supra, at p. 198, 28 Cal.Rptr.3d 213;  In re Daniel S. (2004) 115 Cal.App.4th 903, 9 Cal.Rptr.3d 646.)   Further, Nickolas ignores rule 1430(f), which provides that, pursuant to section 385, the juvenile court may correct clerical errors in judgments, orders, or other parts of the record on the court’s own motion, and that such corrections may be entered nunc pro tunc.²⁰

We conclude that the juvenile court has the authority pursuant to section 385 to change, modify or set aside its prior orders sua sponte.   (See In re S.B. (2004) 32 Cal.4th 1287, 1297, 13 Cal.Rptr.3d 786, 90 P.3d 746 [“Section 388 allows any parent to petition the juvenile court and section 385 allows the court on its own motion to change, modify, or set aside any order previously made by the court” (italics added)];  In re Hirenia C. (1993) 18 Cal.App.4th 504, 512, 22 Cal.Rptr.2d 443 [“section 385 gives the juvenile court continuing jurisdiction to modify its dependency orders sua sponte”].)   Under this section, the juvenile court may modify an order that contains a clerical error, but may also reconsider the substance of a previous order the court considers to have been erroneously, inadvertently or improvidently granted.  (Rule 1430(f);  see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450, 63 Cal.Rptr.2d 513 [juvenile court had authority to correct its own erroneous ruling].)   In circumstances such as are presented in this case, section 385 is the procedural mechanism by which the juvenile court may modify a previous order, sua sponte, in dependency proceedings.

D. The Juvenile Court Also Has Inherent Authority Under the California Constitution to Modify Its Prior Orders Under Extraordinary Circumstances

The Constitution vests each branch of the government with certain core or essential functions that may not be usurped by another branch.  (LeFrancois, supra, 35 Cal.4th at p. 1097, 29 Cal.Rptr.3d 249, 112 P.3d 636;  People v. Bunn, supra, 27 Cal.4th at 14-16, 115 Cal.Rptr.2d 192, 37 P.3d 380.)   The core function of the court is to decide controversies between the parties and to ensure the orderly administration of justice.  (Case v. Lazben, supra, 99 Cal.App.4th at p. 184, 121 Cal.Rptr.2d 405.)   This power is “ ‘not confined by or dependent on statute’ ” (Id. at p. 185, 121 Cal.Rptr.2d 405 quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 267, 279 Cal.Rptr. 576, 807 P.2d 418.)  “[T]he court, by virtue of its status as one of the three constitutionally designated branches of government, has the power to act even in the absence of explicit constitutional or legislative authorization.”   (Superior Court v. County of Mendocino, supra, 13 Cal.4th at p. 57, 51 Cal.Rptr.2d 837, 913 P.2d 1046;  see also People ex rel. Morgan v. Hayne (1890) 83 Cal. 111, 118-119, 23 P. 1.)

While Nickolas concedes that the juvenile court might have the constitutional authority to modify a previous order when necessary to prevent a “miscarriage of justice,” he asserts that the court may not use such constitutional authority to correct an error of judgment.   Specifically, Nickolas argues that the court may not invoke this authority when, as here, such modification affects his constitutional interest in maintaining his parental rights and continuing his relationships with his children.   Nickolas contends that the inherent power of the court to adopt an innovative rule or procedure applies only where the Legislature has not provided a statutory means by which the court may act, and that “before improvising a procedure in juvenile dependency proceedings, the court must consider the primary objective of the proceeding, which is the promotion of the best interests of the child, but it must also weigh and protect the constitutional rights of the parents which necessarily are implicated.”  (In re Amber S., supra, 15 Cal.App.4th at p. 1265, 19 Cal.Rptr.2d 404.)

In In re Dakota H., supra, 132 Cal.App.4th at page 223, 33 Cal.Rptr.3d 337, this court described the constitutional rights and interests that are at stake in a dependency proceeding:

“A parent’s interest in the companionship, care, custody and management of his or her children is a fundamental civil right.  (In re B.G. (1974) 11 Cal.3d 679, 688 [114 Cal.Rptr. 444, 523 P.2d 244].)   Children, too, have a compelling independent interest in belonging to their natural family. (Adoption of Kay C. (1991) 228 Cal.App.3d 741, 749 [278 Cal.Rptr. 907].)   In addition, each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver.  (In re David B. (1979) 91 Cal.App.3d 184, 192-193 [154 Cal.Rptr. 63].)   The government interest in a child’s welfare is significant.  ‘The welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.’  (In re Marilyn H. (1993) 5 Cal.4th 295, 307 [19 Cal.Rptr.2d 544, 851 P.2d 826], citing In re David B., supra, 91 Cal.App.3d at pp. 192-193 [154 Cal.Rptr. 63], and Stanley v. Illinois (1972) 405 U.S. 645, 649 [92 S.Ct. 1208, 31 L.Ed.2d 551].)”

Assuming arguendo that there is no applicable statutory mechanism by which the court could properly have modified the disposition order, in this case, the court nevertheless had inherent authority to make such a modification to avoid a miscarriage of justice.   The modification of the disposition order in this case meets the stringent constitutional standards that a court must meet when it exercises its inherent authority under the California Constitution.

Before modifying the disposition order, the juvenile court provided Nickolas with notice and an opportunity to be heard, including the right to present evidence and to confront witnesses regarding the provision of reunification  services that might facilitate his ability to maintain his fundamental interest in his relationships with his children.   The court weighed the children’s best interests, and in particular, their interest in a stable, permanent home, against Nickolas’s fundamental interest in parenting his children.   In doing so, the court considered Nickolas’s past actions as a parent, the nature of his existing relationships with the children, and the likelihood that reunification services would result in family reunification within the statutory limitations on the length of time children may remain in temporary placement. (366.21, subd. (g)(1).)   Further, Nickolas remained free to participate in services offered at the facility in which he was incarcerated and to present evidence of changed circumstances to the court, through the mechanism of section 388, at the section 366.26 hearing.  (Renee J. v. Superior Court, (2001) 26 Cal.4th 735, 750, 110 Cal.Rptr.2d 828, 28 P.3d 876;  Marilyn H., supra, 5 Cal.4th at p. 309, 19 Cal.Rptr.2d 544, 851 P.2d 826 [availability of § 388 protects a parent’s substantive and due process rights in the parent/child relationship].)   The court thus safeguarded Nickolas’s rights to procedural and substantive due process.

Reunification services are a benefit;  a parent is not constitutionally entitled to services.  (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 750, 110 Cal.Rptr.2d 828, 28 P.3d 876;  In re Alanna A., supra, 135 Cal.App.4th at p. 563, 37 Cal.Rptr.3d 579.)   While “[p]arenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood” (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514), it is difficult to envision an act more incompatible with parenthood than a parent’s repeated, intentional infliction of serious injuries on his or her child, as occurred in this case.   The law does not require a futile act.  (See People v. Sandoval (2001) 87 Cal.App.4th 1425, 1438, 105 Cal.Rptr.2d 504.)   Delaying the selection and implementation of the children’s permanency plan in order to provide reunification services to a parent who is not entitled to receive them ²¹ and who, due to the length of his incarceration, would not be in a position to reunify with his children, would constitute a miscarriage of justice. (Cal. Const., art.   VI, § 13.)

III

The Juvenile Court’s Modification of the Disposition Order Through the Procedural Mechanism of Section 388 Did Not Result in A Miscarriage of Justice

Whether an order should be modified rests within the sound discretion of the juvenile court.   Its decision will not be disturbed on appeal absent a clear  abuse of discretion.  (In re Jasmon O. (1994) 8 Cal.4th 398, 415, 33 Cal.Rptr.2d 85, 878 P.2d 1297.)   While the abuse of discretion standard gives the trial court substantial latitude, “[t]he scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action․’ ”  (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297, 255 Cal.Rptr. 704.)   “Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.”  (Ibid.) With respect to challenged factual findings, a reviewing court will affirm “ ‘if there is any substantial evidence to support the trial court’s findings,’ i.e., ‘if the evidence is reasonable, credible and of solid value․’ [Citation.]”  (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536, 38 Cal.Rptr.3d 484.)

The court’s finding that providing reunification services to Nickolas would be detrimental to the children is supported by the anticipated length of Nickolas’s incarceration, his minimal contact with the children before he was incarcerated, the severe injuries Nickolas inflicted on his infant son, the chronic nature of Nickolas’s abusive acts, and the intensive treatment that would be required to resolve the risk Nickolas presents to the children’s physical safety.²²  Other factors supporting the validity of the court’s modification of the disposition order include the children’s attenuated relationships with Nickolas, the availability of a safe, permanent home for the children, the view of the children’s mother that the proposed adoptive placement was in their best interests, and the inference that Nickolas would not be in a position to reunify with the children even if he were provided reunification services for a period of six months.

We conclude that the juvenile court’s determination of the merits underlying the modification of the disposition order was fundamentally sound.   A trial court’s judgment may not be set aside for procedural error unless the error resulted in a miscarriage of justice.  (Cal. Const., art.   VI, § 13.)   If the court had made the modification in this case sua sponte, through either its statutory authority pursuant to section 385, or its constitutional authority under California Constitution, article VI, section I, rather than pursuant to the parties’ petitions for modification under section 388, the result would have been the same.   The procedural error does not affect the validity of the court’s ruling, and there has been no miscarriage of justice.   We therefore decline to grant the relief petitioner requests.

DISPOSITION

The petition is denied.

FOOTNOTES

1.   Statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   “Sua sponte” means “without prompting or suggestion;  on its own motion” “[Latin ‘of one’s own accord;  voluntarily’].”  (Black’s Law Dict. (8th ed.2004), p. 1464, col. 2.)

3.   Apart from the May 2004 case in which Nickolas pled guilty to felony attempted abuse of a minor, we are unable to determine from the record whether Nickolas was convicted of the other criminal offenses set forth in the jurisdiction and disposition report.

4.   In her letter dated March 23, 2005, the social worker did not inform Nickolas that Matthew had been detained.   E.G. initially alleged that another man was Matthew’s father.   At the detention hearing, the court made a nonprejudicial finding that Nickolas was Matthew’s presumed father, pursuant to Family Code section 7611, subdivision (a).   Several months later, paternity testing established that the man E.G. had initially named was not Matthew’s father.

5.   The Agency had not developed a case plan for Nickolas prior to the disposition hearing, nor did it complete a case plan for him after the court ordered the Agency to provide reunification services to Nickolas.   (See fn. 12, post.)

6.   The court’s generalized finding that the Agency had provided reasonable services to both parents was apparently based on the extensive reunification services that had been provided to the children’s mother.   The better practice would be for the court to make separate findings as to the adequacy of reunification services offered or provided to each parent.  (See, e.g., In re Ronell A. (1996) 44 Cal.App.4th 1352, 1362, 52 Cal.Rptr.2d 474 [each reunification plan must be appropriate to the particular individual and based on the unique facts of that individual];  In re Misako R. (1991) 2 Cal.App.4th 538, 545, 3 Cal.Rptr.2d 217.)

7.   Hydrocephalus is “an abnormal increase in the amount of cerebrospinal fluid within the cranial cavity that is accompanied by expansion of the cerebral ventricles, enlargement of the skull and especially the forehead, and atrophy of the brain.”  (Merriam-Webster’s Collegiate Dict. (11th ed.2003) p. 608, col. 2.)

8.   “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.   In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attitude toward the implementation of family reunification services, and any other appropriate factors.” (§ 361.5, subd. (e)(1).)

9.   “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶] (12) That the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code.” (§ 361.5, subd. (b)(12).)At trial, due to the complexity of determining whether Nickolas’s conviction in Arizona for attempted child abuse would qualify as a violent felony under the California Penal Code, the Agency withdrew its request for modification of the disposition order pursuant to section 361.5, subdivision (b)(12).  (See part II.B, pp. 16-17 & fn. 12, post.)

10.   All rule references are to California Rules of Court.

11.   Providing family reunification services to the parents or parent of a dependent child is the rule, not the exception.  (In re Alanna A., supra, 135 Cal.App.4th at p. 563-564, 37 Cal.Rptr.3d 579;  In re Dakota H. (2005) 132 Cal.App.4th 212, 223, 33 Cal.Rptr.3d 337 [“unless limited exceptions apply, a parent is provided with services designed to reunify the family within a statutory period”].)

12.   Section 361.5, subdivision (b)(6) provides that reunification services need not be ordered for a parent of a child adjudicated dependent pursuant to any subdivision of section 300 as a result of severe physical harm to the child, a sibling or a half-sibling by a parent.   Here, the Agency did not allege that the children were in need of the protection of the juvenile court pursuant to section 300, subdivision (j), due to Nickolas’s severe physical abuse of their paternal half-brother.The facts of this case illustrate a significant “gap” in California statutory law involving the provision of reunification services to a parent who, as in this case, has inflicted significant and life-long injuries on his or her child.   Pursuant to federal law, a court may deny reunification services to a parent who has “committed a felony assault that results in serious bodily injury to the child or another child of the parent.”  (42 U.S.C. § 671, subd. (a)(15)(D)(ii)(IV), italics added.)   This fact may be determined by a court of competent jurisdiction.  (Id., subd. (a)(15)(D).)  Thus, federal law does not impose a requirement that the child who is the subject of a dependency petition have been adjudicated dependent on grounds of physical abuse of a sibling, or that the parent have been convicted of a felony assault, prior to denying that parent reunification services.However, in California, if a parent committed a felony assault causing serious bodily injury to another of his or her children, but pled guilty to a lesser offense (or if the related criminal proceedings were pending at the time of the disposition hearing), and/or grounds for jurisdiction over the dependent child did not include the serious physical abuse of the child’s sibling by the parent, the juvenile court may not deny that parent reunification services pursuant to section 361.5, subdivisions (b) or (c).  Further, if that parent is no longer (or not yet) incarcerated, the court might not have the discretion to deny reunification services to that parent pursuant to section 361.5, subdivision (e)(1), even if denial is otherwise indicated by that parent’s previous abuse of a child.  (See, e.g., Sen. Com. on Judiciary, Analysis of Assem.   Bill No. 2679 (1995-1996 Reg. Sess.) as amended May 14, 1996 [removing the requirement in §§ 300, subd (f) and 361.5, subd. (b)(4) that a parent have been convicted in criminal court before the statutes applied at jurisdiction and disposition].)Here, it is clear that Nickolas inflicted serious bodily injury on the children’s paternal half-brother.   However, because this was not a jurisdictional ground on which the children were adjudicated dependent, section 361.5, subdivision (b)(6) did not apply.

13.   Recognizing that “the best practice [is] to investigate all issues thoroughly at the initial phase of the case,” the Agency concedes that “[t]he services issue should have been addressed more thoroughly at the disposition phase of the case.”   County counsel explains that the field social worker did not review the court’s orders and instead relied on the notes of the court officer, contrary to procedure.

14.   Nickolas contends that the appellate courts have not addressed the meaning of the phrase “new evidence” as used in section 388.   He argues that in determining the meaning of “new evidence,” this court should draw upon case law addressing the application of the phrase “new or different facts” to a motion for reconsideration in a civil proceeding.   (Code Civ. Proc., § 1008, subd. (a);  see, generally, In re Francisco W. (2006) 139 Cal.App.4th 695, 707, fn. 7, 43 Cal.Rptr.3d 171 [in the absence of a dispositive provision in the Welf. and Inst.Code, the reviewing court may look to provisions of the Civ.Code and Code Civ. Proc. for guidance].)Appellate courts have held that in civil proceedings “the burden under [Code of Civil Procedure] section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence:  the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213, 37 Cal.Rptr.3d 338, citing Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198, 69 Cal.Rptr.2d 592;  see Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690, 68 Cal.Rptr.2d 228.)   The purpose of the rule is to limit the parties’ ability to bring repetitive motions before the court.  (LeFrancois, supra, 35 Cal.4th at p. 1103, 29 Cal.Rptr.3d 249, 112 P.3d 636.)   In this case, there is no doubt that the information concerning Nickolas’s crime and punishment was available long before the section 388 hearing was held and, therefore, that it would not qualify as “newly discovered evidence” within the meaning of Code of Civil Procedure section 1008.However, in dependency proceedings, there is an important countervailing principle:  The juvenile court must be able to consider the most complete and most pertinent information about a child’s welfare in determining how best to protect that child.   Whether the information could have been presented earlier if the party seeking modification had conducted a reasonably diligent investigation does not alter this basic precept.   We are reluctant to adopt a rule that would hinder the juvenile court’s ability to modify a prior order pursuant to section 388 when the court has determined that a petitioner has met his or her burden to show “new evidence” and that a modification is necessary to promote the welfare of the child.   We are equally reluctant to approve a process that might excuse the Agency’s or another party’s less than reasonably diligent investigation before a disposition or review hearing.   Since we decide this case on other grounds, we need not resolve this issue.

15.   Sections 387, 389, 390, and 391 are not pertinent to the issues raised in this writ.

16.   Although section 386 mandates notice to a parent only when the child is not represented by counsel, when a modification of a prior order may affect the interests of the parent or the child, assuming parental rights have not been terminated, due process requires that the court provide the parent with notice and an opportunity to be heard.  (In re Kelley L. (1998) 64 Cal.App.4th 1279, 1285, 75 Cal.Rptr.2d 762;  see Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865;  § 290.2;  rules 1431(c), 1432(e), 1407(e);  but see, e.g., In re Natasha A. (1996) 42 Cal.App.4th 28, 34, 49 Cal.Rptr.2d 332 [under § 386, the juvenile court is forbidden to change, modify, or set aside its previous orders without advance notice to the minor and to the Agency].)

17.   The form of this syllogism falls into the logical fallacy known as the “fallacy of the undistributed middle.  (See, e.g., Spencer v. Tex. (1967) 385 U.S. 554, 578, 87 S.Ct. 648, 17 L.Ed.2d 606 (dis. opn. of Warren, C.J.);   see, generally, Lind, Logic and Legal Reasoning (2001) pp. 130-131, 133-135.)   The fallacy is Nickolas’s reasoning that section 388 encompasses everything the court does pursuant to section 385, with respect to the procedures set forth in Welfare and Institutions Code, article 12, when in fact it does not.  (See, e.g. §§ 387, 388, 390 [imposing different procedural requirements depending on the type of modification sought].)

18.   The LeFrancois court emphasized that its holding applied only to interim orders of the court.  (LeFrancois, supra, 35 Cal.4th at p. 1105, fn. 4, 29 Cal.Rptr.3d 249, 112 P.3d 636.) In dependency proceedings, until jurisdiction is dismissed, dependency proceedings are ongoing.  (See, e.g., In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406, fn. 6, 22 Cal.Rptr.2d 50 [as a practical matter, the judgment terminating parental rights is the final decision in the dependency process].)   In order to allow a party to appeal an adverse jurisdiction or disposition ruling, section 395 provides that “a party may appeal from disposition order in the same manner as any final judgment.”  (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150, 65 Cal.Rptr.2d 913.)   However, although a disposition order is treated as a final judgment for purposes of appeal, it is not the final decision in dependency proceedings.   For example, the provision of reunification services to a parent at disposition remains subject to modification by the court, with some limitations, until family reunification is achieved or the case is referred to a permanency plan hearing.  (In re Alanna A., supra, 135 Cal.App.4th at pp. 564-565, 37 Cal.Rptr.3d 579.)

19.   In some matters, the Agency acts as an arm of the court.   (In re Ashley M., supra, 114 Cal.App.4th at pp. 7-8, 7 Cal.Rptr.3d 237.)

20.   In In re Eugene R. (1980) 107 Cal.App.3d 605, 613, 166 Cal.Rptr. 219 (Eugene R.), a juvenile delinquency case, this court held that section 775 limited the court’s authority to modify its previous orders sua sponte to the correction of clerical error, as provided by former rule 1391(d).  Section 385 is derived from section 775 and they are identical to each other.  (Stats.1976, c. 1068, p. 4778, § 12;  cf. § 385 with § 775.)   Former rule 1391(d), now rule 1430(f), applies to modifications made pursuant to sections 385 and 775.  (Rule 1391 repealed eff.   July 1, 1989;  rule 1430 adopted eff.   Jan. 1, 1991, as amended eff.   Jan. 1, 2001.)   The holding in Eugene R. that the juvenile court did not have the inherent authority or statutory authority pursuant to section 775, to modify a previous order on its own motion has been called into question.  (See, e.g., LeFrancois, supra, 35 Cal.4th at pp. 1104-1105, 29 Cal.Rptr.3d 249, 112 P.3d 636;  Case v. Lazben, supra, 99 Cal.App.4th at p. 185, 121 Cal.Rptr.2d 405.)   To the extent Eugene R. is interpreted to apply to dependency cases, we decline to follow the holding.

21.   See § 361.5, subd. (c);  42 U.S.C. § 671, subd. (a)(15)(D)(ii)(IV).

22.   Intensive therapeutic services were not available at the facility in which Nickolas was incarcerated.

AARON, J.

WE CONCUR:  McCONNELL, P.J., and HUFFMAN, J.

cited https://caselaw.findlaw.com/ca-court-of-appeal/1461968.html

Supreme Court upholds Indian Child Welfare Act

The Supreme Court issued a landmark victory for tribal sovereignty in Brackeen v. Haaland.

The Supreme Court issued a landmark victory for tribal sovereignty by rejecting all the constitutional challenges to the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland, requiring state courts to make active efforts to protect Native children and keep Native families together. Congress passed ICWA in 1978 to address the nationwide crisis of state child welfare agencies tearing Native children from their families and placing them in non-Native homes, in an attempt to force Native children to assimilate and adopt white cultural norms.

Since 1978, 14 states have passed their own state ICWA laws to strengthen the implementation of all aspects of the Indian Child Welfare Act. Now that the Supreme Court has reaffirmed ICWA, now is the time for states to take action and pass their own state laws building on the protections in the federal law. The map below shows where states have already enacted such state laws.

Along with essential procedural protections, the federal ICWA created a placement preference to promote the stability and security of Native American tribes and families. For any adoption of a Native child under state law, preference must be given to placements with: (1) a member of the child’s extended family; (2) other members of the Native child’s tribe; or (3) families from other Native American tribes. The majority of state ICWA laws incorporate identical or near-identical placement preference language as the federal ICWA, with a few exceptions. For example, some states prioritize placements with families of other Native American tribes that are of similar cultures to the Native child, while other states create a fourth preference for non-Native families that are committed to maintaining the child’s connection to their tribe and culture.By Anu Joshi, Deputy Director, ACLU’s Equality Division source

Supreme Court upholds Indian Child Welfare Act

The nation’s highest court on Thursday upheld the legality of the Indian Child Welfare Act in a historic decision for tribal law and sovereignty.

Judges for the U.S. Supreme Court ruled 7-2 in Haaland v. Brackeen that the Act was constitutional. Challengers to the law claimed the Act discriminated against non-Native families, Congress did not have the authority to pass the Act, and that the act was anti-commandeering.

“But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.” U.S. Supreme Court Judge Amy Coney Barrett wrote in the opinion of the court.

President Joe Biden said he stood alongside tribal nations in the celebration of the court’s decision and nations’ “painful history” of the forced assimilation of Native children loomed over the decision.

“These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations,” Biden said in a press release. “The Indian Child Welfare Act was our Nation’s promise: never again.”

ICWA was enacted in 1978 by Congress to govern the removal and out-of-home placement of Native American children after it was found Native children were removed from their homes and communities at a higher rate than non-Native children.

According to the Act, the child’s biological family is given first preference, followed by members of the child’s tribe, then members of any other tribe, with placement with a non-Native American family as a last resort.

The Act clarifies tribal nations have sovereignty and exclusive jurisdiction over their members who reside on tribal land and establishes a process for transferring cases to tribal court in other cases.

Thursday’s decision came after a federal judge in Texas first ruled the Act unconstitutional in 2018.

A white couple, Chad and Jennifer Brackeen, sought to adopt a 10-month-old Native American child. The child remained in the couple’s custody for more than a year when a Texas state judge used ICWA in a ruling to place the child with a Native family.

The Brackeens later won custody of the child in state court with the decision later appealed to the Northern District of Texas.

U.S. District Judge Reed O’Connor ruled the Act unconstitutional and wrote in his opinion the racial classification of children has not been shown to serve a “compelling governmental interest” and found the Act violated the Fifth, Tenth, and Fourteenth amendments of the U.S. Constitution.

O’Conner’s decision was appealed to the Fifth Circuit Court of Appeals and a panel of three judges upheld the constitutionality of ICWA “with partial dissent.” That led to an en banc panel of 16-judges within the Fifth Circuit split in the constitutionality of the Act.

The en banc panel’s decision was then appealed to the nation’s highest court with argument in the case held in November 2022.

Cherokee Nation Principal Chief Chuck Hoskin Jr., whose tribe was a party in the case, celebrated Thursday’s decision.

“Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage,” Hoskin said in a release following the decision. “ It is also a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”

Hoskin said he hopes the decision will end the political attacks aimed at diminishing tribal sovereignty.

Choctaw Nation Chief Gary Batton said in a release the tribe is glad to see ICWA stand and that the Act remains a critical part of protecting Native American heritage and tribal sovereignty.

“The Choctaw Nation will continue to support children and families through its foster care system, Indian Child Welfare team, tribal attorneys and over 100 tribal services,” Batton said.

U.S. Supreme Court Justice Neil Gorsuch wrote in a concurring opinion that it is often Native American tribes come to the court seeking justice “only to leave with bowed heads and empty hands.”

“But that is not because this court has no justice to offer them. Our Constitution reserves for the tribes a place—an enduring place— in the structure of American life,” Gorsuch wrote. “It promises them sovereignty for as long as they wish to keep it.”

Gorsuch wrote the Constitution gave the federal government and Congress certain power aimed at “building a lasting peace” and that Congress passed the Act to give Native American parents the right to raise their families as they please and Native children to grow in the culture and the communities of Native Americans “to resist fading into the twilight of history.

“All of that is in keeping with the Constitution’s original design,” Gorsuch wrote. source

NATIONAL INDIAN LAW LIBRARY

Topic 1. Application

Disclaimer: A Practical Guide to the Indian Child Welfare Act is intended to facilitate compliance with the letter and spirit of ICWA and is intended for educational and informational purposes only. It is not legal advice. You should consult competent legal counsel for legal advice, rather than rely on the Practical Guide.

APPLICABLE FEDERAL LAW

25 U.S.C. § 1903. Definitions

(1) “child custody proceeding” shall mean and include—

(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;

(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

(4) “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . .

Disclaimer: The above provisions of the Indian Child Welfare Act are set forth to facilitate consideration of this particular topic. Additional federal, state or tribal law may be applicable. Independent research is necessary to make that determination.

QUESTIONS & ANSWERS

• 1.1 – When does the ICWA apply?
• 1.2 – What are the exceptions to ICWAs application?
• 1.3 – What is the so-called Existing Indian Family exception (EIF)?
• 1.4 – Who is an Indian Child under the ICWA?
• 1.5 – What is an Indian tribe under ICWA?
• 1.6 – Who determines membership or eligibility for membership?
• 1.7 – Who has the burden to prove an Indian child is involved?
• 1.8 – What if the childs Indian heritage is uncertain?
• 1.9 – What if more than one tribe has an interest in the Indian child?

1.1 – When does the ICWA apply?

Only two prerequisites must be satisfied for the Indian Child Welfare Act (ICWA) to apply. The first requirement is the presence of an Indian child as defined by 1903(4). That section defines an Indian child as an unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . . The second requirement is that the child custody proceeding be one as defined by 1903(1); that is, a foster care placement; termination of parental rights; pre-adoptive placement; or adoptive placement.

Practice Tip:

Practitioners should review state law and intergovernmental agreements as they may expand the protection of the ICWA, such as by expanding the definition of an Indian child. MINN. STAT. 257.0651 (1992); IOWA CODE 232.7 (2003).

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1.2 – What are the exceptions to ICWA’s application?

After defining those proceedings to which the ICWA does apply, the Act states: [s]uch term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents. 25 U.S.C. 1903(1). Thus, ICWA expressly provides for only two exceptions to its applicability: certain juvenile criminal proceedings based on a status crime, such as underage drinking which only a minor can commit, and divorce cases. There are no other exceptions.

Even so, a Montana court excluded an intra-family custody dispute finding that it was not a child custody proceeding because the Act is not directed at disputes between Indian families regarding custody of Indian children; rather, its intent is to preserve Indian cultural values under circumstances in which an Indian child is placed in a foster home or other protective institution. In re Bertelson, 617 P.2d 121 (Mont. 1980). See also In re Sengstock, 477 N.W.2d 310 (Wis. Ct. App. 1991); Comanche Nation v. Fox, 128 S.W.3d 745 (Tex. App. 2004). Other courts have expressly rejected the Bertelson analysis as contrary to the express provision of the Act enumerating which proceedings are excluded; that is, certain juvenile crimes and divorce cases. All other proceedings involving the custody of an Indian child fall within the ambit of the Act. Comanche Indian Tribe of Okla. v. Hovis (Hovis I), 847 F. Supp. 871 (W.D. Okla. 1994); D.J. v. P.C., 36 P.3d 663 (Alaska 2001); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997); In re Q.G.M., 808 P.2d 684 (Okla. 1991); In re A.K.H., 502 N.W.2d 790 (Minn. Ct. App. 1993); In re S.B.R., 719 P.2d 154 (Wash. Ct. App. 1986); In re Jennifer A., 127 Cal. Rptr. 2d 54 (Ct. App. 2002); In re Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991); In re Crystal K., 276 Cal. Rptr. 619 (Ct. App. 1990). Another court applied ICWA without deciding the intra-family issue because of the parties implicit assumption that ICWA applied to the situation. In re Anderson, 31 P.3d 510 (Or. Ct. App. 2001).

Practice Tip:

Counsel should be aware that although a case may start as a delinquency proceeding, ICWA may apply to subsequent child placements (i.e. foster care) based upon a determination that a return to the childs home would be inappropriate.

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1.3 – What is the so-called Existing Indian Family exception (EIF)?

The Existing Indian Family exception (EIF) is a judicially-created exception to the ICWA that originated in In re Baby Boy L., 643 P.2d 168 (Kan. 1982). In that case, the court held that the ICWA did not apply to an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be. The court interpreted the ICWA as being only concerned with removal of Indian children from an existing Indian family unit. Id. at 175. Although narrowly interpreted in subsequent cases, a Washington court required that in addition to an Indian child being removed from an Indian family, the child was to be returned to an existing Indian family unit or environment. In re Crews, 825 P.2d 305, 310 (Wash. 1992). The Crews decision appears to have been statutorily superseded. See WASH. REV. CODE 26.10.034(1), 26.33.040(1), 13.34.040(3) (2004).

The EIF exception has been raised to a constitutional level by two appellate districts of California (Second and Fourth). In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996); In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001); In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Ct. App. 1996). These cases hold that the child and his or her parents, and maybe even the extended family when involved, must have a significant social, political and cultural relationship to their tribal culture to uphold the constitutionality of the ICWA under federal law.

The EIF, however, has been implicitly and explicitly rejected by courts and legislatures in a number of states that have addressed the issue.

States rejecting the EIF exception by decision

Alabama: S.H. v. Calhoun County Dept of Human Res., 798 So. 2d 684 (Ala. Civ. App. 2001)
Alaska: J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); In re T.N.F., 781 P.2d 973 (Alaska 1989); A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982)
Arizona: Michael J., Jr. v. Michael J., Sr., 7 P.3d 960 (Ariz. Ct. App. 2000)
California: four of six appellate districts: In re Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991) (1st Dist.); In re Junious M., 193 Cal. Rptr. 40 (Ct. App. 1983) (certified for partial publication) (1st Dist.); In re Crystal K., 276 Cal. Rptr. 619 (Ct. App. 1990) (3d Dist.); In re Hannah S., 48 Cal. Rptr. 3d 605 (Ct. App. 2006) (3d Dist.); In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000) (5th Dist.); In re Alicia S., 76 Cal. Rptr. 2d 121 (Ct. App. 1998) (5th Dist.); In re Vincent M., 59 Cal. Rptr. 3d 321 (Ct. App. 2007) (6th Dist.)
Colorado: In re N.B., No. 06CA1325 (Colo. Ct. App. Sept. 6, 2007)
Idaho: In re Baby Boy Doe (Baby Boy Doe I), 849 P.2d 925 (Idaho 1993)
Illinois: In re S.S., 657 N.E.2d 935 (Ill. 1995)
Indiana: In re D.S., 577 N.E.2d 572 (Ind. 1991)
Iowa: In re R.E.K.F., 698 N.W.2d 147 (Iowa 2005)
Michigan: In re Elliott, 554 N.W.2d 32 (Mich. Ct. App. 1996)
Montana: In re Riffle (Riffle II), 922 P.2d 510 (Mont. 1996)
New Jersey: In re Child of Indian Heritage (Indian Child II), 543 A.2d 925 (N.J. 1988)
New York: In re Baby Boy C., 805 N.Y.S.2d 313 (App. Div. 2005)
North Carolina: In re A.D.L., 612 S.E.2d 639 (N.C. Ct. App. 2005)
North Dakota: In re A.B., 2003 ND 98, 663 N.W.2d 625
Oklahoma: In re Baby Boy L., 2004 OK 93, 103 P.3d 1099
Oregon: Quinn v. Walters (Quinn II), 881 P.2d 795 (Or. Ct. App. 1994)
South Dakota: In re Baade, 462 N.W.2d 485 (S.D. 1990)
Texas: In re W.D.H., III, 43 S.W.3d 30 (Tex. App. 2001); Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870 (Tex. App. 2000)
Utah: In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997)

States upholding ICWAs constitutionality, including those rejecting the EIF exception

Arizona: In re Pima County Juvenile Action No. S-903, 635 P.2d 187 (Ariz. Ct. App. 1981)
California: In re Vincent M., 59 Cal. Rptr. 3d 321 (Ct. App. 2007) (6th Dist.)
Colorado: In re N.B., No. 06CA1325 (Colo. Ct. App. Sept. 6, 2007)
Illinois: In re Armell, 550 N.E.2d 1060 (Ill. App. Ct. 1990
Maine: In re Marcus S., 638 A.2d 1158 (Me. 1994)
Michigan: In re Miller, 451 N.W.2d 576 (Mich. Ct. App. 1990)
Montana: In re Riffle (Riffle II), 922 P.2d 510 (Mont. 1996)
North Dakota: In re A.B., 2003 ND 98, 663 N.W.2d 625
Oklahoma: In re Baby Boy L., 2004 OK 93, 103 P.3d 1099
Oregon: In re Angus, 655 P.2d 208 (Or. Ct. App. 1982)
South Dakota: In re D.L.L., 291 N.W.2d 278 (S.D. 1980)

States rejecting the EIF exception by statute

California: CAL. WELF. & INST. CODE 224(a)(1) (2006); CAL. R. CT. 5.664
Iowa: Iowa Indian Child Welfare Act, IOWA CODE 232B.5(2) (2003)
Minnesota: Minnesota Indian Family Preservation Act, MINN. STAT. 260.751, .755, .761, .765, .771 (1999)
Oklahoma: Oklahoma Indian Child Welfare Act, OKLA. STAT. tit. 10 40.1-.3 (1994)
Washington: WASH. REV. CODE 26.10.034(1), 26.33.040(1), 13.34.040(3) (2004) (superseding In re Crews, 825 P.2d 305 (Wash. 1992))

States adopting the EIF exception by decision

California: two of six appellate districts: In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996) (2d Dist.); In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001) (2d Dist.); In re Derek W., 86 Cal. Rptr. 2d 742 (Ct. App. 1999) (2d Dist.); In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Ct. App. 1996) (4th Dist.)
Kansas: In re Baby Boy L., 643 P.2d 168 (Kan. 1982)
Kentucky: Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996)
Louisiana: Hampton v. J.A.L., 27-869 (La. App. 2 Cir. 7/6/95); 658 So. 2d 331
Missouri: C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992); In re S.A.M., 703 S.W.2d 603 (Mo. Ct. App. 1986)
Tennessee: In re Morgan, No. 02A01-9608-CH-00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 19, 1997)
Washington: In re Crews, 825 P.2d 305 (Wash. 1992), superseded by WASH. REV. CODE 26.10.034(1) 26.33.040(1), 13.34.040(3) (2004)

The EIF exception still has vitality in the two California appellate districts (Second and Fourth) that have adopted a constitutionally-based EIF exception and one division within the Second District that has adopted it as an interpretation of ICWA. The exception is followed in Kentucky, Missouri and Tennessee (an unreported decision) which have no federally recognized tribes. In Kansas and Louisiana, whose courts have refused to apply the EIF exception following the one decision upholding it, the validity of the exception may be in doubt. In re S.M.H., 103 P.3d 976 (Kan. Ct. App. 2005); In re J.J.G., 83 P.3d 1264 (Kan. Ct. App. 2004); In re A.P., 961 P.2d 706 (Kan. Ct. App. 1998); In re H.A.M., 961 P.2d 716 (Kan. Ct. App. 1998); In re H.D., 729 P.2d 1234 (Kan. Ct. App. 1986); Owens v. Willock, 29-595 (La. App. 2 Cir. 2/26/97); 690 So. 2d 948.

At the Federal level, the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), implicitly rejected the EIF exception when it interpreted the ICWA to apply to Indian children who were placed for adoption and who never physically lived in an Indian home or on an Indian reservation prior to being placed with non-Indian prospective adoptive parents. Id. at 54. The Court made a threshold determination that the ICWA applied to these children. Id. at 42. It found that the state court proceeding at issue was an adoptive placement as defined by 1903(1)(iv) of the Act and that the children involved were Indian children as defined by 1903(4) of the Act even though they had never lived in an Indian home or on an Indian reservation. The Court relied on the plain language of the ICWA in its application to the facts.

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1.4 – Who is an Indian Child under the ICWA?

An Indian child is an unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe . . . . 25 U.S.C. 1903(4). A key link to this definition is the meaning of Indian tribe.

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1.5 – What is an Indian tribe under ICWA?

Indian tribe is defined as any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians including any Alaska Native village as defined in section 1602(c) of title 43. 25 U.S.C. 1903(8). It means only federally recognized tribes. Canadian tribes, and other foreign Indian tribes, and non-federally recognized tribes are therefore excluded from its coverage.

From time to time, the Secretary of the Interior publishes a list of federally recognized tribes eligible for federal services and benefits. Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs. Most courts use this list to determine whether the Indian childs tribe, and thereby its children, are protected by the Act.

The Secretary, from time to time, will federally acknowledge an Indian tribe under the federal acknowledgment regulations contained at 25 C.F.R. Part 83 (2007). A newly-acknowledged tribe will not appear on the list of federally recognized tribes until the Secretary updates the list. If in doubt, a practitioner should contact the Office of Federal Acknowledgment (OFA), Bureau of Indian Affairs (BIA), Washington, D.C. Also, OFA keeps a list of non-federally acknowledged tribes which have filed a letter of intent to file a petition for federal acknowledgment or have filed a petition. The practitioner may want to consult this list to determine if claimed ancestry of the parent or child is to a non-federally recognized tribe.

In addition, Congress will from time to time reaffirm or restore government-to-government relations with a tribe whose relationship was terminated during the termination era of the 1950s when the United States severed its government-to-government relationship with a number of Indian tribes and thereby withdrew eligibility for federal services provided to Indians because of their status as Indians. Also, the Congress will at times federally acknowledge Indian tribes by legislation. See, e.g., Federal Recognition of Mashantucket Pequot Tribe, 25 U.S.C. 1758 (2000). The practitioner should contact the Assistant Secretarys Office of the Bureau of Indian Affairs, Washington, D.C.

Practice Tip:

Practitioners should review state law and intergovernmental agreements as they may expand the protection of the ICWA, such as by expanding the definition of an Indian tribe.

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1.6 – Who determines membership or eligibility for membership?

For ICWA purposes, the tribe or Alaskan Native village has the sole power to decide membership. In re A.G., 2005 MT 81, 326 Mont. 403, 109 P.3d 756; In re A.L.W., 32 P.3d 297 (Wash. Ct. App. 2001).

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1.7 – Who has the burden to prove an Indian child is involved?

The party seeking to establish the application of the ICWA has the initial burden to establish a prima facie case that an Indian child may be involved, although all parties and the court have a continuing obligation to inquire as to the status of the child. See, e.g., COLO. REV. STAT. 19-1-126 (2002); IOWA CODE 232B.4 (2000). There is no one proof of membership, although courts generally agree that an Indian childs enrollment in an Indian tribe is conclusive proof of membership. Tribal enrollment however, is not the only means of establishing membership. In re T.L.G., 108 P.3d 156 (Wash. Ct. App. 2005). Some tribes automatically include a person as a member if the person descended from a tribal member who was listed on the tribal rolls as of a specific date. In re Arianna R.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363. Thus, in some instances, courts have remanded for proper notice even where the parent offered no proof of membership and was not enrolled in a tribe. In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004); Dwayne P. v. Superior Court, 126 Cal. Rptr. 2d 639 (Ct. App. 2002).

A tribe may determine that a child is not enrollable but later change its determination and enroll the child. In re E.S., 964 P.2d 404 (Wash. Ct. App. 1998). Once membership, or eligibility for membership, is established, and the ICWA is applied and accepted as applicable by all the parties, a party may not later change its mind and take a contrary position on appeal. In re R.L., 961 P.2d 606 (Colo. Ct. App. 1998); In re N.S., 474 N.W.2d 96 (S.D. 1991).

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1.8 – What if the childs Indian heritage is uncertain?

One purpose of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an Indian child. In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004). Some information relating to Indian heritage must be provided to the court or entity seeking placement for notice to be sent to a tribe(s) or BIA area office. If the tribes identity is unknown, notice must be sent to the BIA as agent for the Secretary of the Interior. In re Antoinette S., 129 Cal. Rptr. 2d 15 (Ct. App. 2002). See also FAQ 4.11. An unsubstantiated belief a child has Indian heritage is not conclusive to establish such heritage. See, e.g., In re Arianna R.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363.

The BIA Guidelines are helpful in determining under what circumstances a court has reason to know that a child is an Indian child under the ICWA. The Guidelines describe the following circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian child:

(1) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.

(2) Any public- or state-licensed agency involved in child protection services or family support had discovered information which suggests that the child is an Indian child.

(3) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.

(4) The residence or domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.

(5) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.

Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979) (guidelines for state courts).

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1.9 – What if more than one tribe has an interest in the Indian child?

In this situation, a court is called upon to determine which tribe has more significant contacts with the Indian child, although notice should be sent to each tribe regardless of the final determination. The BIA Guidelines are helpful in guiding a court to make its determination. The Guidelines list at least eight factors for a court to consider in determining which tribe has the most significant contacts for the purpose of designating the Indian childs tribe under the ICWA, especially for the purpose of transfer of jurisdiction. See Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,587 (Nov. 26, 1979) (guidelines for state courts).

For the tribe that has the lesser contacts, the Guidelines provide that it still could be granted a right of intervention without undermining the right of the tribe with greater contacts. The tribe with lesser contacts could also be afforded the ability to serve as a placement preference under 1915 the Act.

In South Dakota, a state court determined jurisdiction by looking at the childs domicile and the tribe with whom the child had the most significant contacts. The state court found jurisdiction vested in the tribe on whose reservation the child was domiciled and with whom the child had the most contacts, and not the tribe in which the child was enrolled. Cf. In re T.I., 2005 SD 125, 707 N.W.2d 826.

Practice Tip for tribal courts:

If the situation is not an emergency, two tribes that would have jurisdiction over a case, because the child is a tribal member or eligible for tribal membership in either tribe, should talk with each other about which tribal court should accept transfer jurisdiction under the Act to hear the case. At times, as for example in Alaska, a cooperative agreement can be worked out between the tribal courts to form a joint tribal court panel.

In emergencies, the tribal court that begins to handle a case should be recognized by the other tribal court to have priority jurisdiction until the tribal courts can sort out which court has primary jurisdiction. source