and malpractice. I am well versed as to
the terms of your contract with the State of Colorado as court appointed attorney,
among other relevant details. American Family Advocacy Center
14053 Eastonville Rd. Elbert, CO 80106 ( 719)749-2971 / Fax (719)749-2972
http://www.profane-justice.org
February 25, 2003
Mr. Dan Kender
VIA FAX 719-542-6328
Dear Mr. Kender
This is to notify you that I have been engaged as an expert consultant by April Fields in regard to her dependency case in Fremont County. I understand that she is scheduled for a jury trial in May.
I am including a copy of April’s power of attorney appointing me as her agent. You are hereby directed to treat any communication with me as privileged under that authority. You are also directed not to reveal April’s association with me to anyone. You only need to concern yourself with your practice and do not worry about whether I can be forced to reveal anything that would injure your client’s legal interests. I have twelve years of experience in this issue, and it hasn’t happened yet. The best course for April’s protection is if you were to consider me part of your legal team and hire me to assist you in that capacity. Then all communication will be protected under work product. As long as you are providing a vigorous defense on April’s behalf, you will not be charged any fees for my services. I can provide attorney references if you require them.
I am providing you with the following information and instructions to be used in
April’s case. Since time is of the essence in this issue, and since the subject of this
case is extremely important, delays and failure to properly prepare or respond will be
considered ineffective assistance of counsel
and malpractice. I am well versed as to
the terms of your contract with the State of Colorado as court appointed attorney,
among other relevant details.
Of course, if you can demonstrate that these strategies will not be in April’s best legal interests, I am open to those arguments and to the alternatives you suggest which will accomplish the same outcome. What will not be acceptable is simply advising April to ‘cooperate’ and doing nothing to ‘upset’ anyone, including caseworkers, GAL or the judge. You are not here to stroke any egos, but to protect April’s legal interests. I also recognize your need to do this in your style, and respect that. I only care that the job gets done right.
I can provide you with all the legal arguments and documentation you require, but that will be useless if you fail to make the necessary arguments in court. If you feel that you are unable to vigorously defend April’s interests, you are directed to advise April and me of that fact. If you feel the need to file a motion to withdraw, it must be done immediately. Be advised that April will oppose that motion.
I believe that you are qualified and capable of taking the initiative in this case and arguing forcefully on behalf of the issues presented in this letter. The strategies in this letter have proven successful in Colorado and around the country over 90% of the time.
Even if you feel the judge will rule against you, you must make the record for appeal. This is essential.
1. You will file a written response to the petition filed by DHS. I understand that April has provided you with the facts of the case to facilitate that response.
2. You will raise all relevant constitutional issues. This is not negotiable. The Constitution and Bill of Rights are relevant in these cases. These include, but are not limited to, the following issues:
a. The parent is presumed fit until there is a finding of unfitness. Unless and until there is a finding of unfitness, the state cannot substitute it’s own decisions for the parent’s. Troxel v. Granville 530 US 57 (2000). There has been no finding of unfitness until there is an adjudication, therefore the delay in reunification violates April’s rights.
b. April’s right to decide to live with her extended family, especially as it is
beneficial to the child and supportive of April in her parenting capacity.
Moore v. City East Cleveland 1977.sct.42094; 431 U.s. 494, 97 S. Ct.
1932, 52 L. Ed. 2d 531 (05/31/77)
You must file an immediate motion for
the court to order DHS to cease interfering with this family arrangement
and to stop insisting that April live independently of her family. As long as
her family is willing and able to include her under their roof, this is a non-issue and outside the realm of DHS authority. You must shut this down
immediately.
c. The state failing to establish a legitimate emergency which required the removal of the child from the home. Assuming, arguendo, the allegations were true, lice, minor neglect or ‘risk’ of future abuse or neglect, do not meet the statutory or constitutional requirements which satisfy a deprivation of this nature. There is no compelling state interest which requires the removal of the child when in-home services could have insured the child’s safety and well-being. I understand that this should have been addressed at the Preliminary Protective Placement hearing, however, evidently, it wasn’t. It must be put on the record now.
In an effort to circumvent constitutional prohibitions regarding the
passage of laws governing child welfare
, Congress have chosen
to act under their ‘spending powers’ to buy from the States those
powers it could never exercise directly. The offering of Federal
grant moneys, conditioned upon the states implementing specific
legislation in order to comply with terms of those grants, has
become the mechanism under which the State has assumed the
authority, under the color of law, to intrude into the privacy of the
family without demonstrating a genuine compelling state interest,
and without regard for the rights of the parents or children
involved. This authority is unbridled, lacking adequate and
independent oversight, and administered without accountability
and is completely devoid of adequate safeguards to protect
children’s and parents’ rights. This has resulted in Federal child
welfare grant moneys being used to induce the States to engage
in activities that are unconstitutional
, with complete immunity from
civil or criminal prosecution included as a condition of receiving
those grant moneys.
d. Any demand or requirement that the parent cooperate or admit anything is a denial of due process and a violation of constitutional rights of child and parent. Withholding physical custody and limiting visits because the parent refuses to cooperate or admit is retaliation and a violation of their rights and not consistent with the statutory mandates. April and her daughter are protected from this retaliation due to the exercise of her rights. The state must bear the burden of proving its case BY ITS OWN EFFORTS and cannot compel the cooperation of the parent.
e. Foster care and dependency petitions cannot be used to redistribute children from disadvantaged homes or subjectively ‘undesirable’ homes into more affluent or desirable homes. The only issue under consideration is - Is April’s current living situation adequate to meet the minimum statutory and reasonable standards of care to insure the safety and well-being of the child? April asserts that it is, and therefore the child MUST be returned to her.
3. In order to get the constitutional and other relevant issues on the record, you will need to file the following documents:
a. Motion to return the child to the parent on the grounds that the issues raised in the petition do not meet statutory and constitutional mandates for removal. If this fails, then:
b. Motion for increased parenting time, and eliminating the need for supervision.
c. Motion to challenge any finding of reasonable efforts and demand an evidentiary hearing as to reasonable efforts. Reasonable efforts is as important a finding in dependency cases as the adjudication is. The state must provide evidence that reasonable efforts were made. According to the state plans (IV-B and IV-E) for Colorado, they were not made in this case. Placing April and her child with her extended family and providing in-home services and supervision would have satisfied reasonable efforts. Reasonable efforts must NEVER be allowed to be merely a box that is checked, it MUST be proven in court. For the authority on this seen the Youth Law Center’s publication Making Reasonable Efforts at http://www.emcf.org/programs/children/children_pub.htm
d. Motion to show cause why child cannot be safely returned home with services/supervision in place.
4. In preparation for trial - file requests for admissions with DHS and GAL. Sample admissions for dependency cases can be seen at http://www.profane-justice.org/admissions.pdf. Admission have been used very successfully to get DHS to back off on the petition and return the child home. I would like to review these admissions before you file them.
5. You will need to write a jury instruction which is consistent with item 2e above. April needs to argue that the current jury instructions violate her and her daughter’s constitutionally protected rights by not subjecting the dependency process to the strict scrutiny required to prove a compelling state interest. You must argue for this new jury instruction before the trial, so it will require a motion and hearing.
6. File a motion for expedited trial date. The date scheduled is outside of statutory guidelines.
7. If this is an EPP case, I have a motion you can use which has shut down other cases, challenging the due process protections under statutory EPP guidelines. Let me know if you want that and I can send it to you.
I have observed that attorneys who file these motions, etc. often do not have to go to trial. The state will either pull the petition or offer an informal adjustment, usually on the day of trial.
As you can see, I tend to be very focused and somewhat abrupt. It isn’t personal, I just don’t have time for social amenities. I have a very large caseload and trust that attorneys can take the information I offer and run with it. Most are quite happy to have some help with their cases. I hope you are one of those.
I am amenable to meeting with you in person if you desire. I am available to assist you in whatever capacity you need.
Sincerely
Suzanne Shell
Director