For Birth Parents
This section is for parents who have had a child or children removed from their home by their county child welfare agency due to an allegation of child abuse or neglect. General information about navigating the juvenile dependency court process is provided here so that you can understand the system and better advocate for yourself and your child or children.
If you have an open juvenile dependency case, you have the right to a court-appointed attorney. Because you are entitled to be represented by court-appointed counsel, our attorneys are not allowed to discuss your case with you.
The Judicial Council of California has created a comprehensive and informative guide for birth parents about the juvenile dependency process called the Guide to Dependency Court – For Parents.
In the Guide, you will find information regarding removal, hearings, reunification services and permanency for your child. The guide is also available in Spanish.
The State Ombudsperson's office may also be able to help guide you through the process. Please call (877) 846-1602 for the California Foster Care Ombudsperson's Office.
TABLE OF CONTENTS:
Your Attorney's Role and How to Report a Problem with your Attorney
If you are Concerned About Your Child's Safety in Foster Care
Birth Parents Retain Rights to Make Certain Decisions For Their Children Even if They are Removed
If you are the father of the child, a non-biological parent, the partner of the child’s biological parent, or in some other way believe you have or should have parental rights to a child or youth in a juvenile dependency case, please review our web page regarding Paternity/Parentage so that you can understand how to advocate for yourself in court.
Your Attorney’s Role and How to Report A Serious Problem with Your Attorney
The Attorney-Client Relationship
Your relationship with your attorney is special and has certain legal protections. First and foremost, your communications with your attorney are confidential, which means that the attorney cannot tell anyone else what you talk about unless you give permission with a few exceptions (such as if you are going to commit a crime). Also, your attorney’s job is to explain the law and how it applies to the facts of your case. Finally, your attorney is supposed to be your voice in court and is there to present your position to the judge.
Welfare and Institutions Code §317(e) and California Rule of Court, Rule 5.660 provide standards of representation of legal counsel representing parties in a dependency proceeding. Each county in California also has their own Local Rules of Court which may have additional requirements for attorneys who represent parents in juvenile dependency cases. It is important for you to look at your local county rules to see if your attorney is meeting those requirements. To look up your county’s local rules, please visit our Local Rules of Court webpage and follow the instructions there.
*NOTE: On November 1, 2018, new ethics rules pertaining to attorneys' professional code of conduct went into effect. The California Rules of Professional Conduct are binding on all attorneys licensed by the State Bar of California. New Rules 1.2 and 1.4 are pertinent to representation of clients as follows:
Rule 1.2 Scope of Representation and Allocation of Authority: confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations.
Rule 1.4 Communication with Clients: requires an attorney to reasonably consult with the client to accomplish the client's objectives, keep the client reasonably informed about significant developments, and explain matters to the extent reasonably necessary to permit the client to make informed decision.
Reporting Serious Concerns and Requesting New Appointed Counsel
If you feel like your attorney is not representing your interests, you can try to obtain a new attorney at your next court hearing by making a Marsden motion. There is no requirement to file a written motion. To make a Marsden motion, you can simply speak up in court to the judge and clearly state that you are making a Marsden motion and request a substitution of counsel. Be prepared to answer the judge's questions regarding the reasons why you want a new attorney appointed.
Additionally, you may choose to lodge a complaint with the presiding judge of the dependency court. California Rules of Court, Rule 5.660(e) requires the court "...establish a process for the review and resolution of complaints or questions by a party regarding the performance of an appointed attorney. Each party must be informed of the procedure for lodging the complaint. If it is determined that an appointed attorney has acted improperly or contrary to the rules or policies of the court, the court must take appropriate action." In that regard, you may utilize this letter template to communicate with the presiding judge of your local juvenile dependency court and lodge a complaint.
Before you request a new attorney, you should understand the risks. It is possible that if you make any formal complaints and/or do a Marsden motion, your requests may be denied and you will have to work with the same attorney. It is a good idea to try to work through your issues with your attorney and recognize that s/he may not be understanding your frustrations. However, if there is an irrevocable breakdown (that cannot be fixed) in the attorney/client relationship, you are entitled to a new lawyer and may want to seriously consider asking for one. You will need to list specific examples supporting your request.
The State Bar of California' Chief Trial Counsel also receives and investigates complaints regarding unethical professional conduct by attorneys practicing in California. It is important to note that you should only make a complaint to the state bar regarding serious concerns about your lawyer’s representation. For more information, please visit the State Bar of California website.
If You Are Concerned About Your Child’s Safety in Foster Care
If you have information that makes you believe your child is not safe in his or her current foster care placement, notify the county case worker and your attorney immediately. You may also want to take a photo (if possible) of your child’s injuries if they are physically apparent. It is always a good idea to follow up verbal communications (telephone or in person) with written confirmation (such as an email confirming your discussions). Discuss with your attorney about reaching out to the county and your child’s attorney regarding your concerns.
If you believe that your child is in imminent danger and have evidence to support your concern, call the Child Abuse Hotline for the county where your child is residing.
If you have done all of the above and there has been no action, (and you believe your child is still at risk), please discuss with your attorney as to whether you should file a 388 Petition (i.e. utilizing Form JV-180).
Birth Parents Retain Rights to Make Certain Decisions for their Children Even if They are Removed Unless Parental Rights are Terminated
Even if your child is removed you still have the right to make decisions about his/her education and health care (unless your parental rights have been terminated). You should continue to participate in your child’s education and decisions regarding his education. The court can limit your right to make educational decisions based on your failure to respond to and participate in school meetings.
You also retain your right to make healthcare decisions for your child and you have the right to attend medical appointments. However, if it is in the best interest of the child for someone else to retain educational and health care rights (such as the current caregiver), the court may order that those rights no longer be yours.
*NOTE: Advokids’ free telephone hotline can help answer your general questions about your rights as a parent but cannot help answer questions that are specific to a particular child’s case. If you need advice regarding specific issues arising in your case, please direct those inquiries to your attorney. Your attorney is supposed to be on your side in this process.
Birth Parents Rights to Appellate Review
If you do not agree with certain orders made by the juvenile dependency court (such as termination of reunification services or parental rights), you may exercise your rights to further review by the state appellate court. It is important to keep in mind that if you wish to writ or appeal certain court orders, the requests must be made in a timely fashion. Discuss your appellate options with your attorney immediately. For information about which court orders may be appealed and which court orders can be reviewed only by way of a writ petition, please review the Appellate Review section on our webpage.
Legal Disclaimer: Advokids provides educational information and resources to those who use our website, call our hotline, or submit requests for information via the website. Any information provided may not be construed as the giving of legal advice to any person about a particular legal matter and should not be relied upon as the basis for taking a particular action or refraining from taking a particular action in any legal matter. If you want or need legal advice about a particular legal matter, you should consult a lawyer.
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