The Secret:

How to Fight Child

Protective Services
and Win

Vincent W. Davis, Attorney at Law

www.FightChildProtectiveServices.com
www.VincentWDavis.com
Copyright © 2015 Vincent W. Davis

All rights reserved.

ISBN-13: 978-1514899366
ISBN-10: 1514899361
 DEDICATION

This book is dedicated to my late wife

Denise Doucette-Davis.

Without your support,

mentoring and confidence,
I would not have learned
what it really means
to help clients.
Contents
1. Introduction .......................................................................... 10
About the Author: ................................................................ 10
Primary Purpose: .................................................................. 11
2. The Juvenile Dependency Court System .............................. 14
3. The Social Worker’s Initial Investigation .............................. 16
4. First Court Hearing: The Arraignment & Detention Hearing
(A&D) ........................................................................................ 22
5. Placement With Relatives & Family Friends ......................... 26
6. The Pre-Release Investigation (PRI) ..................................... 28
7. The Jurisdictional Hearing (JDX, ROR) .................................. 30
8. The Contested Jurisdictional Hearing (ADJ, Trial #1)............ 34
What Happens at the Trial ................................................... 37
9. The Dispositional Hearing (Dispo, Trial #2) .......................... 40
10. The 388 Petition & Hearing ................................................ 44
11. The Sixth Month Review (364, .21E, JR) ............................. 46
12. The Twelve Month Review Hearing (.21F, PPH) ................. 55
13. The Selection & Implementation Hearing (.26).................. 59
A. 388 petition (See Chapter 10) .......................................... 61
B. Bonding Study .................................................................. 62
C. Notice of Appeal ............................................................... 62
14. Foster Parents Rights .......................................................... 65
15. The Secret ........................................................................... 69
The Secret: HOW TO FIGHT CHILD PROTECTIVE SERVICES AND WIN

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 ACKNOWLEDGMENTS

I would like to acknowledge my hundreds and

hundreds (probably more than a thousand) of
juvenile dependency clients. Without you, this
book would not have been possible.

Representing all of you has been truly a

blessing. I have been helped by you through
your human experiences, more than I have
helped you with my legal representation.

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1. Introduction

About the Author:

Vincent W. Davis is a licensed attorney in the
State of California. He is the managing member
of the Law Offices of Vincent W. Davis &
Associates.
www.VincentWDavis.com,
www.FightChildProtectiveServices.com,
Phone: (888) 888-6582
v.davis@VincentWDavis.com

The law firm currently has two attorneys

who practice primarily in the area of Juvenile
Dependency law. They have represented
families in the following counties, where they
currently have open cases as of the writing of
this book:

Los Angeles San Diego

Orange Ventura
San Bernardino San Francisco
Riverside

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The Secret: HOW TO FIGHT CHILD PROTECTIVE SERVICES AND WIN

Mr. Davis and his firm have handled more

than a thousand juvenile cases over the past 25
years, where he has represented parents, family
members, foster parents and even the children
themselves.
He is an expert in the area of Juvenile
Dependency law, and an expert trial attorney,
which is attributed to his vast experience and
training. He is a graduate of the prestigious
Gerry Spence Trial Lawyers College; and relies
heavily on the trial skills and techniques taught
to him by Gerry Spence (who many consider the
greatest trial lawyer in American history).

Primary Purpose:
The primary purpose of this book is to give
an introduction, and only an introduction, and
outline of the Juvenile Dependency Court
System in California to parents and relatives
involved in this court system. The details and
specifics of any one particular case, or type of
case, are far more complex than what can be
handled in a book of this nature. Further, my
28 years as an attorney cannot be summed up
in an introductory book of this type. If you have
specific questions you must consult with a
competent attorney. At this time, we offer free
initial consultations. Call me at (888) 888-6582.
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 VINCENT W. DAVIS

This book is also written for the purpose of

assisting parents and family members in
figuring out what they should be doing during
this process, and what they can do to assist
their attorneys. It is my strong recommendation
that, if your children are ever taken by a County
social worker, or if you are investigated by a
County social worker, talk to an attorney FIRST!
Do not assume the social worker is your friend.
The worst thing that could happen is you lose
custody of your children, possibly forever.
This book is intended to be informational
ONLY. It is not intended to form an attorney-
client relationship. Nor is it intended to give
specific legal advice. For specific legal advice
you should contact a competent attorney who
will advise you of your rights. Or you can call
me, for a free initial consultation.
(888) 888-6582.

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2. The Juvenile Dependency
Court System

The Juvenile Dependency Court System is

administrated by two different entities. The
Superior Court of California, Juvenile
Dependency Departments - which is part of
every County Superior Court system in
California. This system is part of the judicial
branch of the local government.
The County social works have different
names from County to County. In Los Angeles,
they are referred to as the Department of
Children and Family Services (DCFS). In most
parts of the state, they are referred to as Child
Protective Services (CPS). These departments
are part of the executive branch of the local
government.
Cases generally start with an investigation
by the county social workers, which could, but
not always, involve the local or federal police
agencies. A juvenile dependency investigation
sometimes leads to a criminal investigation,
which is separate and apart from the social

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worker’s investigation. It is my advice that you

DO NOT talk to a county social worker, or a
policeman, without first consulting with an
attorney. It could lead to you losing your
children, forever, or going to jail and being
convicted of crimes.

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3. The Social Worker’s Initial
Investigation

Juvenile Dependency cases usually begin in two

ways. First, the social worker, generally an
Emergency Response (ER) worker, becomes
aware of the suspected child abuse, which was
reported by a third person. California, like most
states, has a long list of “mandated reporters” of
suspected child abuse. Teachers, doctors,
therapists, day care providers, or any other
person(s), can call ANONYMOUSLY and report
suspected child abuse to a County social
worker.
For example, your child attends school,
and the teacher notices some sort of bodily
injury to the child, or the child tells the teacher
s/he has some sort of injury caused by
someone in your home. The teacher must report
the suspected child abuse, and the County
social worker’s investigation begins.
The second way cases generally start is
when there is some sort of police involvement,
and your children are present. For example, you
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The Secret: HOW TO FIGHT CHILD PROTECTIVE SERVICES AND WIN

are pulled over in your car for suspected driving

under the influence, and your children are in
the car. More than likely, the police will contact
the local county social worker hotline; the social
worker will come out, and take your child into
custody. In this situation, you’d most likely be
arrested for driving under the influence, and
child endangerment, and your child will most
likely be placed in a foster home or with
relatives.
You’d then have two cases, a criminal and
a Juvenile Dependency case.
During this process, the social worker is
supposed to advise you of your right to speak to
an attorney; but, this is rarely done. And it
seems there is no adequate remedy for this
failure. In the criminal court system, if the
police don’t advise you of your right to an
attorney before you speak to them, your
statements could be excluded from evidence.
Not so in the juvenile court system, where
your comments can lead to not only losing your
children, in some cases forever; but it could also
lead to you being criminally prosecuted. Your
statements to a social worker can be used
against you in juvenile court, AND in criminal
court. And in most cases, social workers are all
too happy to testify against you in criminal
proceedings.
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 VINCENT W. DAVIS

So, my general advice, based on almost 28

years of experience, is - DO NOT talk to social
workers without consulting an attorney! And, as
you’ve no doubt seen on TV and the movies,
don’t talk to a police officer without consulting
an attorney. I know this is simple advice, but I
see, all too many times, where parents and
relatives violate this advice, because the social
worker acted as if h/she were trying to assist
them, or outright intimidate them. Please don’t
be fooled.
Now I have to say, there are good social
workers. But it’s better to be safe than sorry.
Recently, a client told me that she spoke to
the social worker, because the social worker
said something to the effect, “If you don’t talk to
me, and answer my questions, it will make you
look bad in front of the judge.” And, this might
be true, but it might not be. However, I can
assure you, if you talk to the social worker,
most times you are going to look bad, because
you don’t know the law, you don’t know what
you should say, nor what you shouldn’t say. So
the simple advice is, don’t say anything - until
you can speak to a lawyer.
From a lawyer’s perspective, if you don’t
talk to the social worker h/she can’t gather
information and evidence against you. Most
likely, the worker didn’t observe how an injury
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occurred; so your words become the main

evidence against you.
Finally, if a social worker comes to your
home, you do not, I repeat you do not have to
let them in your home, nor do you have to talk
to them. This is America, and a Warrant or
Court Order is required for them to gain access
into your home. Many times, the social worker
will show up at your home with the local police.
The same rule applies, you do not have to talk
to them, and you do not have to let them in
your home, unless they have a warrant or a
court order.
In some cases, the worker or police may
claim an emergency situation, and demand
entry into your home. At this point, it may be
prudent to allow them in, but you should not
speak to them. Although, they do have the right
to speak with your children. If this happens,
contact a lawyer immediately.
During this initial investigation, the social
worker can do several things. First, the social
worker can immediately initiate a court case.
There is usually nothing you can do about this
but go to court, and consult with an attorney.
Second, the social worker may conduct a
further investigation, which may take a few
days to several weeks. Again, don’t talk to the

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 VINCENT W. DAVIS

worker, and do NOT sign any forms agreeing to

do anything. This is a way the social worker can
gather evidence against you.
Recently, we had a case in San Diego
County. The social worker went to the mother’s
home and got the mother to agree the children
would be removed from her home for 30 days
(without going to court). The mother signed
various forms, including to have the mother
drug tested.
Then the mother called me. I immediately
revoked all the releases of information, and
advised the worker my client would not be drug
testing. The worker informed the mother that, if
she followed my advice, she’d file a case against
her. The problem was that the social worker did
not have enough evidence to start or win a
juvenile case; unless my client did what the
social worker wanted. In the end, the children
were returned, and no case was filed – not
enough evidence. Remember, if you talk, that
will be evidence against you.

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4. First Court Hearing: The
Arraignment & Detention
Hearing (A&D)

After your children are taken by the social

worker, the law requires that you be given the
opportunity to go to court and challenge the
social worker. This can be a long process.
The social worker has to notify you, within
48 hours of you losing your children, that you
have a court date. Some counties use the 72
hour rule, which some appellate courts have
upheld, despite what the statute requires.
If you are taken to court after this time,
request that your attorney make a motion to
dismiss the case for failure to have your first
hearing within the required time frame (the 48
hour rule). This issue could become important
later.
At this first hearing, you should have hired
a competent private attorney to represent you in
this matter. If you did not hire an attorney,
California law requires that a court-appointed

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attorney be given to you to represent you in this

matter. Just like if there were a criminal case, if
you are unable to afford an attorney, one will be
appointed to represent you. First, in most
counties, you will be required to pay the County
back for your court-appointed attorney (s/he is
not free); but, this avenue is probably less
expensive than hiring your own attorney.
But like in a criminal case, serious
consideration should be given to hiring a
competent private attorney. A private attorney
may have some advantages over a public
defender. But, this decision should be made on
a case by case basis.
At this initial hearing, you and your
attorney will be given the “discovery” in the
case. This generally includes the allegations
filed against you, and the supporting
documentation, including the California Welfare
and Institutions Code (WIC) section 300
petition, the Application for petition, and the
Detention Report.
Not all children are recommended to be
removed from their parent/s.
But, in cases where this is recommended
by the social worker, it is important that you
and your attorney review the discovery
documents, and try to craft arguments as to

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 VINCENT W. DAVIS

why the children should be returned to your

custody.
The difficult thing at this hearing, and this
hearing only, is that the judge must accept the
allegations by the social worker as true. After
this hearing, the social worker must prove the
case against you.
If you are in disagreement with the judge’s
ruling, California law allows you to have a
detention rehearing. At this rehearing, you may
cross examine the social worker, live and on the
stand; and in some cases, the judge may permit
you to present some limited evidence on your
own.

Hint: The best way to present evidence is to

use the evidence during the cross examination
of the Emergency Response (ER) social worker.
Otherwise, the judge may not permit you to
present a “case in chief”, or present separate
evidence at this hearing. You may have to wait
to present such evidence at the adjudication/
Jurisdictional hearing at a later date.

The most important thing for you to know

at this hearing is that you have a right to a
speedy trial. If the children are removed from
your custody, your trial may be within 15

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judicial days; if the children are not removed,

your trial may be within 30 judicial days.
The reason this is important is that a lot of
juvenile court rooms are extremely busy, and
your trial may be scheduled for a date 2 or 3
times past the 15 or 30 day limit.
Now, in some circumstances, this may be
beneficial to the parents; sometimes not. But in
any event, it is the sort of thing you should
know, and you should consider, when
scheduling your next dates at the initial
hearing.

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5. Placement With Relatives
& Family Friends

Many times, children are placed in foster homes

when they are taken from parents.
In my opinion, placement with friendly
relatives is always better than placement in a
foster home. The reasons for this opinion are
almost infinite, but include: better visitation
schedule (frequency & duration) for the parents;
children are in a more familiar environment,
and there is less trauma for parents and
children in arranging for scheduled visitation.

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6. The Pre-Release
Investigation (PRI)

On occasion, the judge may set an interim

hearing, if requested, for the home of a relative
or parent to be investigated, so that the children
can be placed there, and not in foster care.
I find that these types of hearings are being
used less and less; and being asked for less and
less by the defense attorneys. Technically, this
type of hearing is not authorized by the letter of
the law (the statutes), but I’ve always argued
that such a hearing can be held under the
court’s discretionary power, especially where
the spirit of the law requires children to be
placed with relatives instead of foster homes.
But if the occasion arises, it is always helpful
for a family if the social worker is ordered to do
the relative placement investigation by a certain
date, with a report back to the court on a
certain date.
Obviously, this can accelerate the
placement of the children with family.

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Problems arise when the social worker’s

report is disputed by the family member, then
the question becomes, “will the judge allow
some sort of contested hearing on this issue?”

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7. The Jurisdictional Hearing
(JDX, ROR)

After the Arraignment & Detention Hearing, the

case is assigned to a social worker called a
Dependency Investigator (DI). It is this workers
job to independently, and objectively,
investigate the allegations of the Emergency
Response (ER) social worker, the allegations in
the WIC 300 petition, including reviewing
documents and interviewing witnesses.
It is my humble opinion that these
investigations are not independent, nor
objective in most cases. Please note, I wrote
“most,” not “all.” However, more times than not,
the Dependency Investigator supports the
claims of the ER worker, because they do not
want to be sued later by the family.
Is there ever child abuse committed by a
parent? “Yes.” But is there ever inaccurate or
exaggerated reporting by the DI? “Yes.”
I’m currently involved in a case where the
DI seems to have copied - word for word - the

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ER worker’s report. And in my investigation, it

seems to appear that the social worker has not
talked to the witnesses independently.
Not too long ago, an ER worker wrote in
her report that the child’s counselor said that
the child was being “emotionally abused”, or
words to that effect. The DI wrote in her report
that very same thing, and made it seem like she
had spoken with the therapist.
At the Contested Jurisdictional Hearing, I
subpoenaed the therapist to testify. The
therapist testified that she never told the ER
worker anything about the child being
emotionally abused. She further testified that
she’d never met or even spoken with the DI.
The report prepared by the Dependency
Investigator for this hearing usually contains
proposed factual findings, as well as
recommendations for the children. Essentially,
the report, in this case, recommended that the
court should take jurisdiction of the children,
and gave conditions and recommendations.
These recommendations included, where the
children should reside: parent’s home, relative
home, or foster home. And it also
recommended, if the children were not returned
home, what classes and therapy the parents
should participate in, in order to regain or keep
custody of the children.
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 VINCENT W. DAVIS

If the parent is not in agreement with

some, or all, of the recommendations, s/he has
the constitutional right to a trial. This includes
the right to subpoena witnesses to testify and
be cross-examined.
At this hearing, the attorney generally
recommends that the client accept some sort of
plea bargain to settle the case. This would
usually mean that the parent would plead “no
contest” to some or all of the allegations in the
WIC 300 petition. I don’t ever recommend a plea
bargain, unless there is some sort of advantage
to my client. And, if there is no plea bargain,
there must be a trial.

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8. The Contested
Jurisdictional Hearing
(ADJ, Trial #1)

Assuming that you were not in agreement with

some or all of the recommendations of the DI in
the Jurisdictional/Dispositional report filed by
the social worker; you are entitled to a trial. I
refer to this trial as the Adjudication Hearing, or
trial number 1 (ADJ, Trial#1).
The first thing you should do is schedule a
meeting with your attorney to review and
develop a legal strategy that could lead to the
return of the children to your home.
Important things have to be completed for
trial preparation:
a. The interview of certain witnesses, if
possible
b. The subpoenaing of these witnesses to
court, and making sure you have a
proof of service for each witness. (If you
don’t have the proof of service, and the
witness doesn’t show, then you won’t
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have a basis to have the court issue a

warrant to have the witness brought to
court).
c. Review and discovery of documents,
and the subpoenaing of these
documents to court.
d. The law permits you to conduct
discovery under Local Superior Court
Rules and/or the State of California
Rules of Court.
In my opinion, this is a step which is not
used enough. The social worker’s records and
files (which are different from the court’s
records and files) should be obtained and
reviewed. There is always the strong possibility
that these records and documents will contain
information that could assist in your defense.
e. Before the hearing, or trial, you should
work on an opening or closing argument
with your attorney. These are not
always used, and not always required
by the court, but it is an excellent way
to organize the case for its eventual
presentation.
f. Special attention should be given to
analyzing the case from the perspective
of every participant, the judge, the
social worker and her attorney, and the

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 VINCENT W. DAVIS

minor’s attorneys’, etc. Too many times

I see clients, and other attorneys, only
giving consideration from their own
perspective. forgetting that there are
sometimes many other competing
perspectives in the court room. If these
aren’t considered, you are not
adequately preparing for the trial.
At this point, I must disclose something that is
unique to juvenile dependency proceedings.
“Hearsay” evidence is admissible in the
social worker’s report, but not by the
parents. Yes, this is not a mistake.
It is based on the assumption that the
social worker is neutral and objective. An
assumption which I have found, in many of my
cases, not to be true or accurate.
Many theorize that this assumption is
based on simple economics; social workers can’t
afford the time or resources to prove a child
abuse case the old fashioned way; so the courts
and legislature have given them this privilege -
which in most cases, turns out to be a huge
disadvantage for the parents.
The best thing to do is accept this, don’t
fight it; and work to win your case despite the
advantage given the county social worker.
At the trial, the social worker and his/her

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attorney must prove, by a “preponderance” of

the evidence, that the allegations by the social
worker are true. Some legal theorists define the
“preponderance” test as “more likely than not” -
or more than 50%.
In legal circles, it is believed to be very
easy, in most cases. for the social worker to do
this. So in order for the parent to win,
sometimes extraordinary efforts must be taken
to defeat the social worker at this stage of the
proceedings.

What Happens at the Trial

1. Typically, the trial starts out by the court
asking the County Counsel, the social
worker’s attorney, if h/she has any
documentary evidence to offer into
evidence. Most of the time, this consists
of the social worker’s reports – submitted
in the case.
2. The court then asks defense counsel if
there is any objection to the reports being
admitted into evidence.
3. Then the county counsel calls witnesses.
After which, each attorney has a chance
to cross-examine the witnesses as they
are called.
4. Then the minor’s counsel goes through
the same steps with documentary
evidence and witnesses, and his/her
witnesses are cross-examined.

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 VINCENT W. DAVIS

5. Then the parents’ attorney goes through

the same steps with documentary
evidence and witnesses, and his/her
witnesses are cross-examined.
6. Then the social worker and her attorney
may call “rebuttal” witnesses, to
contradict the evidence and the witnesses
the parents have presented.
7. After all of this, the attorneys may give
the judge closing arguments. Many times,
the judge does not want to hear closing
arguments, but it’s up to each individual
judge.
8. I should mention at this point, that the
judge may ask questions of any witness
during the proceedings.
9. In my opinion, it does make a difference
which side the child’s attorney comes
down on, the parents or the social
worker’s.
a. When the minor’s attorney is
against the parents, time and
consideration should be taken as to
how the parents’ attorney will deal
with this situation. The possibilities
are almost endless; but they all
should be carefully discussed with
your attorney

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9. The Dispositional Hearing
(Dispo, Trial #2)

If the parents lose the adjudication phase, or if

they plead at the adjudication phase, the next
hearing is the Dispositional Hearing.
This is probably the most important
hearing in the entire juvenile dependency
process. And, we must remember, if you lose
the adjudication trial, this does NOT mean you
will lose the dispositional hearing. And, if you
win this hearing, the children will be returned
to your custody, even though you lost trial #1.
At the dispositional hearing, the social
worker must prove by “clear and convincing
evidence,” that the parents are a “substantial
danger” to the children; and that there are no
less restrictive alternatives to removing the
children from the parents’ home.
Many times, I see parents agreeing to “out
of home” placement, when they have a good
shot at winning the contested dispositional
hearing.
I think this happens because many people
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act, and believe, that the adjudication and

dispositional hearings are one in the same; but
they are NOT. They have different legal tests,
and different burdens of proof.
1. The first test in the adjudication hearing
is the social worker proving you are a
“substantial risk” to the children, by the
lowest burden of proof - preponderance of
evidence.
2. The second test is at the disposition
hearing. The social worker must prove
that you are a “substantial danger” to the
children, by the second highest burden of
proof - clear and convincing evidence.
a. First of all, to be a “substantial
danger” to a child, the evidence
must prove that you are a bad,
really bad, person.
b. Second, by the time you reach this
hearing, most parents have taken
classes or counseling to address the
problems that originally brought
them to the attention of the juvenile
court.
c. Third, clear and convincing
evidence is a heightened standard
of evidence; and in theory, it should
be harder for the social worker to
prove.

Many times the adjudication and the

disposition hearings are done together, at the
same time. And, if that’s the case, you must
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 VINCENT W. DAVIS

know this before you lay out your strategy.

1. It will affect the witnesses you may want
to bring to court. For example, if the court
is going to do both hearings together,
you’d want to bring in your instructors
and counselors to show how you’ve
remediated the problems which brought
you to the court.
2. It will affect the documentary evidence
you want to show the judge.

Otherwise, if these hearings are done

separately, and sometimes you should request
this of the judge, these hearings will be similar
to the adjudication hearing mentioned earlier.
Typically, a separate disposition hearing
starts out by the court asking the County
Counsel, the social worker’s attorney, if h/she
has any documentation to offer into evidence.
Most of the time, this consists of the social
worker’s reports submitted thus far in the case.
1. The court then asks defense counsel if
there is any objection to the reports being
admitted into evidence.
2. Then the county counsel calls witnesses,
after which, each attorney has a chance
to cross-examine the witnesses as they
are called.
3. Then the minor’s counsel goes through
the same steps with documentary

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evidence and witnesses, and his/her

witnesses are cross examined.
4. Then the parents’ attorneys go through
the same steps with documentary
evidence and witnesses, and his/her
witnesses are cross examined.
5. Then the social worker and her attorney
may call “rebuttal” witnesses, to
contradict what the evidence and the
witnesses the parents have presented.
6. After all of this, the attorneys may give
the judge closing arguments. Many times,
the judge does not want to hear closing
arguments, but it’s up to each individual
judge.

I should mention at this point, that the

judge may ask questions of any witness during
the proceedings.
Where the minor’s attorney is against the
parents, time and consideration should be
taken as to how parents’ attorneys will deal with
this situation. The possibilities are almost
endless; but it should be carefully discussed
with your attorney.

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10. The 388 Petition &
Hearing

I mentioned this hearing here, because I’d like

you to be thinking about this tool all during the
juvenile court process. Theoretically, it cannot
be used until after the dispositional hearing;
therefore, I mention it now.
This is a petition that ANY PERSON can file
asking the judge to change a prior court order,
and alleging that it would be in the best
interests of the children. This petition seems
like a somewhat simple form to complete, but
its subtleties are complex in most situations.
The typical person using this tool, is a
parent who wants the children returned home
sooner than the next court hearing. But it’s also
used by relatives to have children moved from
foster care to the relative home. I’ve seen it used
by minors’ attorneys and social workers to
remove children from a certain placement. I’ve
seen it used by non-relatives to place children
in their homes. I’ve seen it used by parents to
stop the termination of their parental rights,
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and to stop an eventual adoption. The uses are

endless, and only limited by the imagination.
If a 388 petition is filed, the court may do
one of two things: grant the petition, and set it
for a hearing; or deny the petition.
If the petition is denied, you have the right
to appeal this decision, immediately.
If the petition is granted, the court can
have a hearing on the petition in a variety of
ways, all within the discretion of the judge.
The court could set a full evidentiary
hearing.
The court could set a hearing where the
judge will just listen to oral argument by the
attorneys, or any combination thereof.
I once was involved in a 388 petition
hearing, where the judge required everyone to
submit testimony by written declaration; and
then only allowed limited oral argument by the
attorneys. This is interesting, because it shows
the varieties of ways a 388 hearing can be
conducted.
Always consult with an attorney before
filing a 388 petition; and always have an
attorney represent you in that proceeding. Too
many things can happen where legal expertise
may be needed.

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11. The Sixth Month Review
(364, .21E, JR)

Assume you won your case at the dispositional

hearing, the case will most likely be continued
for a 6 month review pursuant to WIC 364.
During this period of time, a new social
worker is assigned to your case; a family
maintenance worker. As the name sounds, this
social worker’s job will be to visit you and your
children, at least one time per month, and
report your progress back to the court at the
end of 6 months.
This worker, if s/he notices any problems,
can address the family issues by referring the
family to some sort of “family maintenance”
service such as counseling or parenting classes.
This family maintenance worker also has
the ability to file a new case/petition with the
court and remove the children from the parents’
custody if s/he believes that the children need
protection.
If such a case is filed, the process

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mentioned above in earlier chapters just begins

again.
The best thing that could probably happen
during this period is for the social worker to
recommend, at the 6 month review date, that
the case be closed. If such is the
recommendation, the social worker and the
juvenile court is out of your life.
If the social worker does not recommend
that the case be closed, you are entitled to have
a trial to prove that it should be closed. More
specifically, if you have a trial, the social worker
has to prove that the case should remain open.
These types of cases were not originally
designed to go on forever. They were designed to
address a family problem, and then close.
Ongoing custody and visitation issues should be
handled by the Family Law Courts, under the
Family Code.
The trial you are entitled to at this point is
much like described in earlier chapters, but I
will mention it again since it is extremely
important for you to be familiar with the
concepts of a “trial”. (Refer to the process “as
described on page 37 – “What Happens at the
Trial”
1. Typically, the trial starts out with the
court asking the County Counsel, the
social worker’s attorney, if they have any
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 VINCENT W. DAVIS

documentation to offer into evidence.

Most of the time, this consists of the
social worker’s reports submitted thus far
in the case.
2. The court then asks defense counsel if
there is any objection to the reports being
admitted into evidence.
3. Then the county counsel calls witnesses,
after which each attorney has a chance to
cross-examine the witnesses, as they are
called.
4. Then the minor’s counsel goes through
the same steps with documentary
evidence and witnesses, and his/her
witnesses are cross-examined.
5. Then the parents’ attorneys go through
the same steps with documentary
evidence and witnesses, and his/her
witnesses are cross-examined.
6. Then the social worker and her attorney
may call “rebuttal” witnesses, to
contradict the evidence and the witnesses
the parents have presented.
7. After all of this, the attorneys may give
the judge closing arguments. Many times,
the judge does not want to hear closing
arguments, but it’s up to each individual
judge.
8. I should mention at this point that the
judge may ask questions of any witness,
during the proceedings.
9. Where the minor’s attorney is against the
parents, time and consideration should
be taken as to how the parents’ attorney
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will deal with this situation. The

possibilities are almost endless; but
should be carefully discussed with your
attorney.

If the case is closed at this point, generally,

the court will issue a Family Law Custody and
Visitation Order, which is also filed with the
Family Law Court in your county. The purpose
of this order is to give the parents a starting
point for any future custody and visitation
disputes.
You are entitled to have a trial or hearing
on what this closing order should say and
provide. This could be extremely important in
the future; and will effect computations of
eventual child and/or spousal support.
If an order is issued by the Juvenile Court,
any parent can go to the Family Law Court in
order to change or modify this order. Generally,
there are legal requirements to be met, but that
discussion is beyond this book. If you need
information, contact a competent Family Law
attorney, or contact me. (888) 888-6582.
The second thing which could happen at
the six month review is the WIC 366.21(e)
hearing. This is the six month hearing that
happens if the children weren’t returned to your
custody at the dispositional hearing.

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During this period, you are assigned a

social worker called a “Family Reunification”
worker (FR Worker). It is supposed to be
his/her job to reunify the parents with the
children.
However, during this period there is
something also happening with the social
worker called “Concurrent Planning”. This
planning consists of the social worker
developing a plan for the children to be
permanently placed outside your home; in the
event you are unable to reunify with them.
You can easily see this Concurrent
Planning sometimes clashes with the Family
Reunification plan and its goals.
During this period, if the children have not
been returned to your custody, it is extremely
important for you to:
1. Participate in the FR plan ordered by the
judge
2. Take all steps necessary to make sure the
children are placed with friendly relatives,
even if the relatives are outside the state.

a. This becomes crucial in subsequent

hearings, if the children can’t be
returned to your home.
3. Make sure you are consistently visiting
your children in their out of home

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placement. This too will become crucial in

subsequent hearings.
4. Make sure you keep in written/email
contact with your attorney. It is extremely
important that s/he know the progress
you are making with the FR plan.
a. At the actual hearing, if the social
worker recommends that the
children not be returned to your
custody at this time, you are
entitled to have a trial at a future
date. And, I recommend in most
cases, you take advantage of this
hearing. My recommendation is
based on my experience, but it does
vary from case to case.
b. If you have a trial, it is handled like
the trials described above. It is
extremely important that you meet
and strategize with your attorney.
c. You will need to subpoena
witnesses that will testify on how
you have progressed with your FR
plan. Their opinions may
significantly differ from the opinion
of the social worker. Of course, if
positive, you’d want the judge to
hear this evidence.
d. The process that follows is a repeat
of the steps outlined on pages 22
and 23, “What Happens at the
Trial”

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 VINCENT W. DAVIS

At the end of the trial the court could

do several things:

i. Adopt the social worker’s

recommendation not to
return the childn at this time
ii. Return the children, despite
the social worker’s
recommendations
iii. Liberalize your visitation,
from supervised to
unsupervised
iv. Modify your FR case plan
v. And many other things.

After the hearing, the court may close the case,

or continue the case for the WIC 366.21(f)
hearing, which is another 6 months down the
line.

i. The exact thing the court is

likely to do at this point,
like many other things in
this process, is determined
on the specific facts of your
case.
ii. And, what the court decides
at this point, will usually
control what you and your
attorney should do. But
always consult with your
attorney, or seek a
competent second opinion.

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12. The Twelve Month Review
Hearing (.21F, PPH)

Assuming the children were not returned at the

.21e hearing - this is the 12 month hearing.
During this period, you are still assigned a
social worker, (FR Worker). It is supposed to be
his/her job to reunify the parents with the
children.
During this period “Concurrent Planning”
continues, and seems to take on a more
important status. The theory being that since
you haven’t regained custody, it may be unlikely
that you may regain custody in the future. This
process relates to the social worker developing a
plan for the children to be permanently placed
outside your home; in the event you are unable
to reunify with them.
You can easily see that this Concurrent
Planning sometimes clashes with the Family
Reunification plan and its goals.
During this period, if the children have not
been returned to your custody, it is extremely
important for you to continue to participate in
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the Family Reunification Plan that was ordered

by the judge, including consistent visits to your
children. You also need to keep in written/email
contact with your attorney to keep him/her
informed of the progress you are making in the
FR plan.
At the actual hearing, if the social worker
recommends that the children not be returned
to your custody at this time, you are entitled to
have a trial at a future date. And, in most cases,
I recommend that you take advantage of this
hearing. My recommendation is based on my
experience, but it does vary from case to case.
If you have a trial, it is handled like the
trials described above. It is extremely important
that you meet and strategize with your attorney.
You will need to subpoena witnesses that
will testify on how you have progressed with
your FR plan. Their opinions may significantly
differ from the opinion of the social worker. Of
course, you’d want the judge to hear this
evidence.
At the end of the trial the court could do
several things:
1. Adopt the social workers recommendation
not to return the children at this time
2. Return the children, despite the social
workers recommendations

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3. Liberalize your visitation, from supervised

to unsupervised
4. Modify you FR case plan
5. Set the case for a hearing pursuant to
WIC 366.26 hearing to permanently place
your children out of your care.
a. If this happens, you should confer
with your attorney to develop a plan
to remedy this situation.
b. If you cannot accomplish this, you
should seek a second opinion from
a competent attorney. Time is of the
essence, and you should not delay.
c. There are other appellate remedies
which are available, but you must
speak to your attorney, because
there is a relatively short time
period for you to act.

The exact thing the court is likely to do at

this point, like many other things in this
process, determines on the specifics facts of
your case.
And what the court decides at this point,
will usually control what you and your attorney
should do. But always consult with your
attorney, or seek a competent second opinion.

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13. The Selection &
Implementation Hearing
(.26)

If you haven’t regained custody of your children

by the conclusion of the .21F hearing (Chapter
12), the court will schedule a hearing pursuant
to WIC section 366.26. This hearing is supposed
to select the best permanent plan for your
children.
The first plan the social worker is likely to
recommend is adoption by another person/s.
Generally, this person is a foster parent, or an
unfriendly relative. Adoption means that this
person/s becomes the legal parent of your
children; and that you and your family have no
further rights or interests in the children. You
lose the children forever.
When a relative adopts the children, that
relative becomes the parent. For example, if
your parents adopt the children, they become
the parents of the children and you are not a
brother or sister of the children. But if your in-

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laws adopt the children, you are of no

relationship to the children.
Either way, you have no rights to visitation
with the children, and if you are to see the
children in the future, that will be at the sole
discretion of the new adoptive parents.
Unless you were to win an appeal, an
adoption cannot be overturned.
I am aware that it may be theoretically
possible to bring a lawsuit to overturn an
adoption, but it is highly unlikely.
The second plan that the social worker
may recommend is legal guardianship. Under
this plan, you remain the parent; but the legal
guardian becomes the permanent care taker of
the child, until age 18; making all the decisions
about the child. You may have the right to visit;
most likely these will be supervised or
monitored visits.
You may have the right to overturn the
legal guardianship and regain custody of the
children. You need to discuss this option with a
competent attorney.
The third plan the social worker may
recommend is Long Term Foster care. Under
this plan, the child remains with the foster
parent, relative or family friend until the child is
18 years of age. This plan is rarely used these
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days. In most cases, social workers and courts

opt for the more “favored” plan of permanency,
which is adoption.
To prepare for the contested .26 hearing:
The first hearing will be to inform the judge
if you agree or disagree with the social worker’s
recommendations. If you don’t agree, the court
will set a trial/contest date for you to challenge
the social worker’s recommendations.
If the recommendation is for adoption, you
will immediately want to sit and discuss the
case, and your alternatives, with your attorney.
Needless to say, permanently losing your
children is an extremely important topic, and
you need to know what can be done to stop or
delay this from happening.

A. 388 petition (See Chapter 10)

One of the first things I recommend is that
the parent/s file a 388 petition and ask for
several different remedies. Most of the time, I
request return of the child, further Family
Reunification Services, additional visitation to
increase the bond between the parent and
children, or placement of the children with
friendly relatives.
The strategies and steps to implement
some or all of these alternatives are beyond the

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scope of this book. Suffice it to say, you should

discuss these things with your attorney, and if
s/he is not willing to go through this process,
you may want to consider changing attorneys.

B. Bonding Study
A “bonding study” between you and the
children is extremely important. You should
request that your attorney arrange such a study
with a local expert; and in some cases the court
may be willing to pay for it pursuant to
Evidence Code section 730. If not, you may
have to cover that cost.
During this time frame, it becomes
important that you have continuous and
frequent visitation. This, and other things that
may help you stop or delay the termination of
your parental rights, will most likely be fought
by the social worker, the social worker’s
attorney, and in a lot of cases, by the children’s
attorney.
So you can see the importance in making
sure your attorney takes the time and interest
in implementing a plan to save your parental
rights.

C. Notice of Appeal
If you lose this hearing, you should

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immediately ask your attorney to file the Notice

of Appeal form. It is a two page form. If s/he is
unable to do that for you, you have 60 days in
which to file that form. The only hope that you
may have to regain custody, or to prevent an
adoption, is by way of this appeal.
If you cannot afford an appellate attorney,
the appellate court will provide one for you; or
you may hire your own.
Note that your appeal will only be based on
the evidence submitted in the trial court. So, it
is important that you and your attorney meet
and confer in advance to determine the
witnesses and documentary evidence that is
going to be submitted to the court at this
hearing.
Most important, is the subpoenaing of
certain witnesses, to ensure their presence. If a
witness is not present, it is unlikely the judge
will give you a continuance to bring in that
witness, unless you have a proof of service that
the witness was served, but did not show.
Please call me for a free consultation
regarding your .26 hearing, or the appeal from
your .26 hearing, or the denial of your 388
petition.
(888) 888-6582.

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14. Foster Parents Rights

Foster Parents may have certain rights in the

relationship, custody and visitation of a foster
child. They may not have the same rights that a
parent has, or a relative. But they do indeed
have rights. Many times I’m confronted with
foster parents who have been told by a county
social worker that they do not have rights, and
that is simply not true.
Generally, the foster parent may be losing
the foster child, because the social worker has
decided to move the child to another foster
home. This may be able to be stopped.
Or, the foster parent may be losing the
child, because the social worker has decided to
move the child to a blood relative. This may be
able to be stopped.
Or, the foster parent may be losing the
child, because the social worker has decided to
return the child to a parent.

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The key things that the foster parent must

file are:
1. De Facto Motion
2. 388 petition
3. 827 petition
4. Petitions for legal guardianship, both
temporary and permanent.

But it should be noted that the filing of

these documents is about 40 percent of the
work; and not even the most important part.
The most important part for this to be
successful is the representation you receive at
the hearings or mini trials for these
proceedings.
Sometimes, concurrently with this, the
State of California initiates administrative court
proceedings to discipline a foster parent, or to
revoke the foster parents’ license or
certification. These proceedings are not in the
Juvenile Court, but in the Office of
Administrative Hearings, located around the
state.
These hearings are special administrative
hearings, and are usually prosecuted by the
State Attorney General’s Office, and/or the
State Community Licensing Department’s Legal
Department. I recommend that you not try to
represent yourself; there are special rules of

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procedure and evidence which can apply to

these proceedings.
Please call me for a free consultation
regarding your foster care situation. (888) 888-
6582.

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15. The Secret

Everything that I’ve written in previous chapters

in this book is significant information and
critical to winning your case. In fact, everything
I’ve written in these chapters could be
considered a “secret”. However, I’d like to share
with you an additional comment that I consider
of special relevance to every Juvenile
Dependency (CPS) case. .
When I was a child, I practiced an ancient
Japanese martial art, Judo. Judo actually
means “the gentle way”, yet one of the secrets to
Judo, among other things, was to keep your
opponent close. If you held your opponent
close, you were more likely to be able to flip and
pin the opponent to the floor. On the same
note, Machiavelli wrote in the famous 15th
Century book, The Prince, ‘keep your friends
close, but your enemy’s closer”.
The same advice is true in most legal
cases; including juvenile dependency cases and
cases involving Child Protective Services (“CPS”)
or Department of Children and Family Services
(“DCFS”). Many people focus on the facts that
their rights have been violated, and not enough

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focus is given to working on getting the children

back into their custody.
I often ask clients,
“Do you want to be right, or do you want
to get your children back.”
I know that you may be feeling that this
whole process is an “injustice” and that your
rights have been trampled on – and possibly
violated. But, in most cases, it’s not possible to
vindicate your rights while at the same time
winning the case in order to regain custody of
your children. If you want you want to go after
the social worker and the county, save that fight
for the subsequent lawsuit in Federal Court for
civil rights violations. The juvenile judge may
not be interested in the fact that your civil
rights were violated, and the fact that they were,
will not help you win the juvenile case. I know
that this may be a hard pill to swallow, but in
my almost 30 years of experience it is an
unfortunate truth.
Here’s an example of a case that I was
involved in recently that illustrate this concept
even further:
A young mother had been involved (for a
couple of years) in Juvenile Dependency court -
with several court-appointed attorneys- and she
was increasingly frustrated with the system and
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the social workers, yet desperate to get her child

back. She felt the social workers’ requests were
unreasonable, frivolous, and things were being
asked of her that she deemed unnecessary to
the case.
Her reactions to these requests may have
been easily interpreted by judges, social
workers and other administrators involved in
the case as obstinate and/or combative –
perhaps she was perceived as being
uncooperative, impulsive, acting out
aggressively, or displaying anger management
issues. Even though this was not the case, she
was having a difficult time convincing others
that she was “fit” to get her children back.
She finally hired my firm to represent her.
After we appeared in court with her the first
time, she was upset – and tearful – that the
attorney assigned to the case seemed to be
agreeing to these “frivolous” requests. This led
her to the belief that everyone was against her,
and that we weren’t fighting for her rights.
We talked. I gently reminded her of my
mantra:
“Do you want to be right, or do you want
to get your children back.”
After a lengthy discussion, she agreed to
do her best and comply fully with the social
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workers’ requests, and - as we anticipated - at

the next court hearing, her case was dismissed.
So, now you know my secret – and it can
be yours, too. As in the ancient martial art of
judo (“the gentle way”) study your “opponent”.
Draw him or her close – master and control the
situation. Don’t get “out of control.” Realize
that resistance or can be perceived as a barrier
or roadblock – making the requests/demands
even more difficult to overcome.
As in all life situations, there’s a hard and
expensive way to do things, and there’s an
easier and less expensive (“gentle way”) to do
things. The ultimate goal is to win. The choice
is yours, I can do both.

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