CRIMJ 420: Criminal Law and Procedure

Co-authored by Clinton M. Sandvick, JD, PhD

What is Shepardizing?

As a lawyer or law student, any time you cite a case in support of a legal argument, you must check whether its authority has changed as a result of more recent decisions. The process by which one determines whether a case is still good law is called “Shepardizing.” It is named after Frank Shepard, a 19th century legal publisher who developed a system for indexing all of the citations that reference a particular case. Traditionally, this process required a thorough review of published volumes and supplements in search of references to a single case. However, today, most lawyers and law students prefer the ease of Shepardizing their cases automatically through online subscription-based databases, like LexisNexis or Westlaw.

Case Help

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Legal Research Strategy: Updating Research (Shepardizing)

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Here are 4 guides on Shepardizing Cases:

• Shepardizing
• How to Shepardize
• Using Shepards Online
• Using Shepard’s Citation Service
• Using Only LexisNexis to Shepardize
• Shepardizing Case Research Guide & Tips
• Introduction to Legal Research
• Western Washington University Legal Research Strategy: Updating Research (Shepardizing)
• Texas State Law Library – Case Law Research

FINDING MEDIA COVERAGE

Here are Several Videos that if you watch them all you should have a well versed idea of what to do…. Good Luck, God Bless You!

https://guides.libraries.psu.edu/harrisburg/crimj420/locate

Rule 5.24. Joinder of persons claiming interest

CALIFORNIA RULES OF COURT  Family and Juvenile Rules  Joinder of Parties

2022 California Rules of Court

Rule 5.24. Joinder of persons claiming interest

A person who claims or controls an interest in any matter subject to disposition in the proceeding may be joined as a party to the family law case only as provided in this chapter.

• (a) Applicable rules
  • (1)  All provisions of law relating to joinder of parties in civil actions generally apply to the joinder of a person as a party to a family law case, except as otherwise provided in this chapter.
  • (2)  The law applicable to civil actions generally governs all pleadings, motions, and other matters pertaining to that portion of the proceeding as to which a claimant has been joined as a party to the proceeding in the same manner as if a separate action or proceeding not subject to these rules had been filed, except as otherwise provided in this chapter or by the court in which the proceeding is pending.
• (b) “Claimant” defined
  For purposes of this rule, a “claimant” is an individual or an entity joined or sought or seeking to be joined as a party to the family law proceeding.
• (c) Persons who may seek joinder
  • (1)  The petitioner or the respondent may apply to the court for an order joining a person as a party to the case who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children, or who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.
  • (2)  A person who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children, may apply to the court for an order joining himself or herself as a party to the proceeding.
  • (3)  A person served with an order temporarily restraining the use of property that is in his or her possession or control or that he or she claims to own, or affecting the custody of minor children subject to the action, or visitation rights with respect to such children, may apply to the court for an order joining himself or herself as a party to the proceeding.
• (d) Form of joinder application
  • (1)  All applications for joinder other than for an employee pension benefit plan must be made by serving and filing form a Notice of Motion and Declaration for Joinder (form FL-371). The hearing date must be less than 30 days from the date of filing the notice. The completed form must state with particularity the claimant’s interest in the proceeding and the relief sought by the applicant, and it must be accompanied by an appropriate pleading setting forth the claim as if it were asserted in a separate action or proceeding.
  • (2)  A blank copy of Responsive Declaration to Motion for Joinder and Consent Order for Joinder (form FL-373) must be served with the Notice of Motion and accompanying pleading.
• (e) Court order on joinder
• (1)  Mandatory joinder
  • (A)  The court must order that a person be joined as a party to the proceeding if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship.
  • (B)  Before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a).
• (2)  Permissive joinder
  The court may order that a person be joined as a party to the proceeding if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.
  In deciding whether it is appropriate to determine the particular issue in the proceeding, the court must consider its effect upon the proceeding, including:
  • (A)  Whether resolving that issue will unduly delay the disposition of the proceeding;
  • (B)  Whether other parties would need to be joined to make an effective judgment between the parties;
  • (C)  Whether resolving that issue will confuse other issues in the proceeding; and
  • (D)  Whether the joinder of a party to determine the particular issue will complicate, delay, or otherwise interfere with the effective disposition of the proceeding.
• (3)  Procedure upon joinder
  If the court orders that a person be joined as a party to the proceeding under this rule, the court must direct that a summons be issued on Summons (Joinder) (form FL-375) and that the claimant be served with a copy of Notice of Motion and Declaration for Joinder (form FL-371), the pleading attached thereto, the order of joinder, and the summons. The claimant has 30 days after service to file an appropriate response.

(Subd (e) amended effective January 1, 2017.)
Rule 5.24 amended effective January 1, 2017; adopted effective January 1, 2013.
Title 5, Family and Juvenile Rules-Division 1, Family Rules-Chapter 2, Parties and Joinder of Parties-Article 3, Employee Pension Benefit Plan; adopted January 1, 2013.

source

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

Child’s Best Interest in Custody Cases

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

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

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

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

]]> https://goodshepherdmedia.net/parents-rights-childrens-bill-of-rights/ Wed, 14 Sep 2022 22:55:30 +0000 https://goodshepherdmedia.net/?p=6433 Parent’s Rights & Children’s Bill of Rights

Scotus Ruling for Parents

Quick Facts on Parental Involvement

• Children who have parental support are likely to have better health as adults.
• Students with involved parents tend to earn higher grades, have better social skills, and are more likely to graduate and go on to post-secondary education.
• Children are more likely to be socially competent and have better communication skills when they have parents who are sensitive to their needs and emotions.
• Teens who are monitored by their parents are one-quarter as likely as teens with “hands-off” parents to smoke, drink, and use drugs.

Parents play an irreplaceable role in the lives of their children. This vital relationship positively impacts a child’s physical, mental, and emotional well-being. The right of parents to maintain a strong involvement in their children’s lives has been continually upheld by Supreme Court doctrine. It is deeply valued by millions of American families. cited

Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.1 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.2 Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

read another amendment section under the 14th amendment below

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

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment  this CODE PROTECTS all US CITIZENS

We also have the  Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment  this CODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECTS all US CITIZENS

We also have the  California Civil Code Section 52.1 Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of Rights SCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Children’s Bill of Rights During Splitting Up, Separation or Divorce

The biggest fear parents have during divorce is the impact it will have on their children.  Putting the needs and best interests of your children first during a divorce can look different for every family.

Even during a time of great stress and turmoil, parents have a responsibility and opportunity to truly support their children.  One way is to remember your child’s rights.

1. Your child has a right to love both of their parents.

2. Your child has a right to not to have to choose between their parents.

3. Your child has a right to not to have to listen to either parent talk badly about the other parent or his or her family.

4. Your child has a right to express feelings and have those feelings acknowledged by their parents.

5. Your child has a right to have contact with both parents at appropriate times, regardless of the parenting schedule.

6. Your child has the right to have their things at both parents’ homes and have it acknowledged that they child have two homes, regardless of how much time they spend at each.

We know you want to be the best parent you can be during your divorce.  Keeping the above rights of your child in mind during the divorce process can help your actions be aligned with your intentions when the going gets tough.

If your child is of appropriate age (generally ages 8 and up), we encourage you to discuss these rights with your child to create an environment in your home that fosters open and honest communication and to support your child through this transition. cited https://koenigdunne.com/childrens-bill-of-rights-during-divorce/

“…It is a Fundamental Constitutional Right.”

In 2000, the Supreme Court cited a long train of previous cases which showed that the right of parents to direct the education and upbringing of their children is a fundamental right. The following passage, taken from Troxel v. Granville, highlights the rich history of this fundamental right:

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, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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, 92 S.Ct. 1526, 32 L.Ed.2d 15 (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, 98 S.Ct. 549, 54 L.Ed.2d 511 (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, 99 S.Ct. 2493, 61 L.Ed.2d 101 (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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720, 117 S.Ct. 2258 (“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 right … 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. (emphasis added)

Learn More: Family Law Appeal

Parents Have an Irreplaceable Role

The role of parents in a child’s life is an irreplaceable one. “Even when young children spend most of their waking hours in child care, parents remain the most influential adults in their lives,” writes Dr. Jack Shonkoff, a board-certified pediatrician who sits on the faculty of the Harvard Graduate School of Education.[2]

“The hallmark of [the parental] relationship is the readily observable fact that this special adult is not interchangeable with others,” he continues. “A child may not care who cuts his hair or takes his money at the toy store, but he cares a great deal about who is holding her when she is unsure, comforts her when she is hurt, and shares special moments in her life.”[3]

The relationship that parents share with their children is one that impacts a child throughout his or her lifetime. Studies show that the benefits of parental involvement are manifold, affecting numerous areas of a child’s life, including health and development, academic progress, and life choices.

The Supreme Court has maintained that parents possess a fundamental constitutional right to raise their children as they see fit. “The child is not the mere creature of the State,” the Supreme Court concluded in a 1925 ruling. “Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

“The 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.”

– Pierce v. Society of Sisters, 268 U.S. 510
(1925 Supreme Court case)

The role of parents in the lives of their children has, historically, been one of unquestioned value, celebrated in cultures around the world. And the rights that come along with that responsibility—to direct the upbringing and education of one’s own children—have been consistently honored and upheld.

There is only one way to effectively secure the foundation of parenthood for this generation and the next: a constitutional amendment that explicitly protects the child-parent relationship from unreasonable government intrusion. A constitutional amendment will ensure that the rights of parents to raise their children are honored by federal court judges.

cited 

In early 2006, the U.S. Supreme Court used this very language when talking about violations of religious liberty. According to the Court, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.”Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents.

Protecting Parental Rights at the State Level

Parents have rights to be parents’

[1] While in Jackson v. Tangreen (2000), the Court of Appeals of Arizona found that “Troxel cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny,” the newer Ariz. Rev. Stat. § 1-601 explicitly requires this strict scrutiny review.

[3] Col. Rev. Stat. § 13-22-107(1)(a)(III) expressly declares parental rights “fundamental,” which may lead to strict scrutiny protection the next time the issue comes up in the courts.

[4] In Wilson v. Div. of Family Servs., the Supreme Court of Delaware recognized “the interest of natural parents in the care and custody of their children” as a “fundamental right,” but did not specify strict scrutiny.

[5] O.C.G.A. § 19-7-1 (b. [***8] 1) establishes a rebuttable presumption that parental custody is always in the child’s best interest.

[6] While in Skov v. Wicker v. Boydston, 272 Kan 240 (2001), the Kansas Supreme Court, citing the Troxel ruling, only demanded the ambiguous Troxel test, it is expected that the religious freedom statute of 2013 that calls for fundamental parental rights and outlines strict scrutiny protection will lead to a different outcome in Kansas courts the next time the issue comes up.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[9] While North Carolina and Rhode Island courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right, unfortunately, no specific standard of review (such as “strict scrutiny”) is set in these cases in either state.

[10] Tennessee does have numerous laws on the books that provide support to parental rights.

[11] Although Texas does not have a specific parental rights statute, parental rights are respected and protected by statute in several key parts of Texas law. A parental rights statute could improve on this–but not by much.

[12] Vermont courts have a history of recognizing fundamental parental rights but the standard of review may be a subject of confusion.

[13] Washington courts affirm parental rights as fundamental, although there is no mention of strict scrutiny.

[14] West Virginia law acknowledges parental rights as fundamental in W. Va. Code § 49-1-1(a) and W. Va. Code § 49-6D-2(a).

[15] In 2003, the New Jersey Supreme Court heard just such a challenge to the grandparent visitation statute. Our Supreme Court, in essence, found the Grandparent Visitation Statute as drafted to be unconstitutional and therefore added a requirement: a threshold showing of harm that can be satisfied only by “gross misconduct, unfitness, abandonment, or exceptional circumstances.” [Moriarty v. Bradt, 177 N.J. 84, 112-18 (2003).] Following such a finding, the parent is obliged to offer a visitation schedule, and if the grandparents agree to that schedule, “that will be the end of the inquiry.” If the parent and grandparents are unable to agree on a visitation schedule, the Court will implement a schedule “that it finds is in the child’s best interest, based on the application of the statutory factors.” [Moriarty v. Bradt, 177 N.J. 84, 117 (2003).]

Cited https://parentalrights.org/states/

 3 Constitutional Rights of Parents Develop 1920’s : parents have a fundamental liberty interest in the “care, custody and control” of their children (though not to due process before removal).  Meyer v. Nebraska, 262 U.S. 390 (1923) (teaching foreign language in school)  Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private schools) “It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”  Prince v. Massachusetts, 321 U.S. 158 (1944) (right to practice religion)

4 4 In Re Gault, 387 U.S. 1 (1967) “Due process, not benevolent intentions, produces justice.” – Justice Abe Fortas   Struck down parens patriae authority of the court to remove children from home without a hearing (to deal with criminal conduct).   Did not disturb the parens patriae doctrine in dependency cases.   Hailed by some as advancement in children’s rights.   Criticized by others as the criminalization of the juvenile court and the beginning of the end of the court’s authority to treat children like children rather than adults.   “Child’s best interest” today can retain some of the old paternalism, if we are not careful.

5 5 Constitutional Rights of Parents 1972: Unwed father could not be presumed to be an unfit parent; Entitled to a hearing, under equal protection clause) – Stanley v. Illinois, 405 U.S. 645 1982: The interest of parents in the care and custody of their children is a fundamental liberty interest protected by the due process clause of the 14 th amendment. – Santosky v. Kramer, 455 U.S. 745 (because of due process protection, standard of proof for TPR must be clear and convincing). * Extended to adjudications by NM statute 32A-4-20(H). * 83 years from the first children’s courts, 15 years after Gault, came the establishment of due process for TPRs in Santosky.

6 6 Despite the Supreme Court’s repeated recognition of these significant fundamental parental liberty interests, these interests have never been seen to be without limits. -Lehr v. Robertson, 463 US 248 (1983). -Gerald D., 491 U.S. 110 (1989). 1980’s

7 7 The Right to Parent Requires a Familial Relationship – Biology is not enough Lehr v. Robertson: The mere existence of a biological link does not merit… constitutional protection. To have constitutionally protected parental rights, an unwed father must take steps to establish a “significant custodial, personal, or financial relationship with his child.”

cited https://slideplayer.com/slide/5813806/

UNFAIR TO ONE SIDE

Norton v. Shelby County, 118 U.S. 425, (1886) “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.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and
attach a fee to it.”
Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

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.”

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 of fraud.”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

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.”

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.

“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).

“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

THEREFOR GIVE THE RIGHTS TO PARENT TO GOOD PARENTS EQUALLY

(In re Caden C. (2021) 11 Cal. 5th 614, 644 (“Caden C.”).) In reversal, the California Supreme Court holds that the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i) does not require heightened or additional showing in order to establish the exception; neither must a parent show that they are substantially complying with the case plan in order to establish the exception.

( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

The 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. – Pierce v. Society of Sisters, 268 U.S. 510 (1925)

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, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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, 92 S.Ct. 1526, 32 L.Ed.2d 15 (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, 98 S.Ct. 549, 54 L.Ed.2d 511 (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, 99 S.Ct. 2493, 61 L.Ed.2d 101 (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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”);

Glucksberg, supra, at 720, 117 S.Ct. 2258 (“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 right … 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. (emphasis added)

It is the natural duty of the parent to give his children education suitable to their station in life. – Meyer v. State of Nebraska, 262 U.S. 390 (1923)

The values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.

Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.

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. – Wisconsin v. Yoder, 406 U.S. 205 (1972)

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. – Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)

The liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in “this Nation’s history and tradition.” – Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.

We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” – Quilloin v. Walcott, 434 U.S. 246 (1978)

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. – Moore v. East Cleveland, 431 U.S. 494 (1977)

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. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. – Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. – Parham v. J. R., 442 U.S. 584 (1979)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others.

“The best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. – Reno v. Flores, 507 U.S. 292 (1993)

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 rights . . . to direct the education and upbringing of one’s children.

The Fourteenth Amendment “forbids the government to infringe … ‘fundamental’ liberty interests of all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” – Washington v. Glucksburg, 521 U.S. 702 (1997)

Child Dependency Due Process –

Conforming to Proof In re I.S.

Published 8/16/2021; First Dist., Div. Two Docket No.: A161417; 67 Cal.App.5th 918

IT WAS AN ABUSE OF DISCRETION AND VIOLATION OF A PARENT’S DUE PROCESS RIGHTS FOR THE COURT TO AMEND THE ALLEGATIONS TO CONFORM TO PROOF IN SUCH A WAY THAT IT 6 MATERIALLY ALTERED THE ALLEGATIONS BY INCLUDING FACTS AND LEGAL THEORIES NOT INCLUDED IN THE ORIGINAL PETITION.

Reversed. Mother’s due process was violated when the court amended the petitions to conform to proof by including facts and legal theories that were not in the original petition. A court may amend a petition to conform to the proof presented at a jurisdictional hearing if the amendment is immaterial, but amendments that are material or prejudicial are not allowed. An example of an allowable amendment is the substituting of one word for another where the variance between the words was minimal. (See In re Jessica C. (2001) 93 Cal.App.4th 1027 [holding the word “touching” could be substituted for “penetrating” in a sexual abuse case because the basic allegation remained the same].)

IN RE I.S.,

“Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among  the most  basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [the parent] adequate notice and an opportunity to be heard.” ( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

( In re Wilford J. (2005) 131 Cal.App.4th 742, 751, 32 Cal.Rptr.3d 317.) “Notice of the specific facts upon which the petition is based is necessary to enable the parties to properly meet the charges.” ( In re Jeremy C. (1980) 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283.)

A court may amend a dependency petition to conform to the evidence received at the jurisdiction hearing to remedy immaterial variances between the petition and proof. ( § 348 ; Code Civ. Proc., § 470.) However, material amendments that mislead a party to his or her prejudice are not allowed. ( Code Civ. Proc., §§ 469 – 470 ; In re Andrew L. (2011) 192 Cal.App.4th 683, 689, 121 Cal.Rptr.3d 664 ( Andrew L. ).)

The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice.” ( In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041–1042, 113 Cal.Rptr.2d 597 ( Jessica C. ).)

https://goodshepherdmedia.net/child-dependency-due-process-conforming-to-proof-in-re-i-s/

CONFRONTATION CLAUSE / DUE PROCESS
https://goodshepherdmedia.net/confrontation-clause/

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). In Ohio v. Roberts, 448 U. S. 56 (1980), the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid. The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. .

In , the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” ., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid.

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’

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.

Gravamen of proof  (In re I.S., supra, 67 Cal.App.5th at p. 928) as the proof offered at the jurisdiction hearing.

“‘Substantial evidence is evidence that is “reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.'” (In re L.W., supra, 32 Cal.App.5th at p. 848.) “‘But substantial evidence “is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal.”‘” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) “‘”Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.'”” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; see In re Ma.V., supra, 64 Cal.App.5th *19 at p. 22 [“Substantial evidence indicates more than a smidgeon or trace; it must be meaningful and significant and cannot be merely speculative.”]; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a “juvenile court’s conclusion ‘supported by little more than speculation’ [is] not based on substantial evidence”].) The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the findings or order. (In re R.V. (2012) 208 Cal.App.4th 837, 843.)

where, as here, the parent appeals from the order terminating jurisdiction and the custody order, an appeal from jurisdiction findings is not moot where the sustained findings have an adverse effect on a parent’s custody or visitation rights. (See Rashad D., supra, 63 Cal.App.5th at p. 159 [“the parent must appeal not only from the jurisdiction finding . . . order but also from the orders terminating jurisdiction and modifying the parent’s prior custody status”].)

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. – Troxel v. Granville, 530 U.S. 57, at 65-6 (2000) state court judge does NOT HAVE the discretion to determine the best interests of the child in these situations THIS violates due process, especially when there is no allegation that the parent is unfit. It is reasonable to presume that parents will act in the best interests of their children, so the state should not interfere and take that role away from them.

The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.

There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their child, my son, see, e. g., Reno v. Flores, 507 U. S. 292, 304.

Family Court Sanctions Ruling Results in Father’s Rights to Visit being Strengthened

Featherstone v. Martinez –  “[i]n a vacuum, [Mother’s] declaration contained lies, was misleading, entitled, controlling, manipulative, constitutionally abusive, and dismissive of any rights to meaningfully participate in co-parenting from the initial requests and arguments of the initial filing till now [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable”

Featherstone v. Martinez – “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.”

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”