FINAL EXAMINATION
Children and the Law
Professor Furth
May 7, 2002

 

EXAM INSTRUCTIONS

1. This is an open book exam. You may refer to any materials you wish.

2. The total time allowed is three (3) hours.

3. The exam consists of three multi-part questions on five pages.

4. Please write your answers in the blue books provided, writing every other line, on one side of the page. If you are running out of time, please outline the remainder of your answer.

5. Be sure to write your exam number on your blue book and on the exam questions.

6. Turn in all questions, scratch paper, and blue books after the conclusion of the exam.

 GOOD LUCK!

 

 

 

QUESTION I
 (150 possible points)

PLEASE ANSWER THREE OF THE FOUR SUB-QUESTIONS SET FORTH BELOW IN PARAGRAPHS A THROUGH D. (If you choose to answer a fourth sub-question, you will be given extra credit.)

A. Under the Fifth and Fourteenth Amendments to the United States Constitution, all persons are guaranteed due process of law. A integral element of due process is access to the courts. Discuss the access that children have to courts in (1) ordinary civil proceedings, such as tort cases, (2) custody and visitation disputes in family courts, and (3) abuse and neglect proceedings under the California Welfare and Institutions Code. In each instance, discuss the child's ability to participate as a party, to be represented by counsel (or a guardian ad litem), to effective assistance of counsel, and to appellate review.

B. What are the bases for subject matter jurisdiction in juvenile court? What is the relationship between the juvenile court and other divisions of the superior court'? When a juvenile court issues a custody order and terminates jurisdiction, in what court, and under what standard, may modification of that order be sought?

C. Parents have a fundamental right to the care, custody, and companionship of their natural children. (1) What is the standard for determining custody between parents? Note the factors that must be considered. Distinguish the standard for an initial custody determination from that employed in modifying the original order. (2) What is the standard for determining custody between a parent and a non-parent? Use Guardianship of Phillip B. to illustrate your answer. (3) If a non-parent is granted custody of a child (i.e., is appointed as the child's guardian), what is the standard for terminating that guardianship? Use Guardianship of Kassandra H. to illustrate.

D. A majority of the Supreme Court in Cynthia D. v. Superior Court adopted the reasoning of the dissent in Santosky v. Kramer as to the weight to be accorded to the interests of a child in a proceeding to terminate parental rights. Set out the steps in a classic procedural due process analysis and the holdings in Cynthia D. and Santosky. Then discuss the function of risk of error as explained by Justice Rehnquist in the Santosky dissent and its relationship to the interests of the child.

 

 

QUESTION II
(200 possible points)

IDENTIFY THE PROCEDURAL PROBLEMS IN THE FOLLOWING SCENARIO, INDICATING THE PROCEDURE THAT SHOULD HAVE BEEN FOLLOWED AND THE GOVERNING STATUTE (IF ANY) AT THAT JUNCTURE. THEN BRIEFLY ASSESS THE PROSPECTS FOR MILLY'S APPEAL AND FRANK'S WRIT PETITION.

 Chad is a skinny kid in the third grade at St. Susan's School in San Francisco. He plays on the soccer team. One day when the team was showering after practice, the coach noticed large dark circles on Chad's arms, back and torso. When he asked the boy about them, Chad shrugged his shoulder and said that his step-dad Frank roughs him up sometimes. Two weeks later, the coach observed new bruises on Chad's body, back and arms. Chad said that Frank was batting his mom (Milly) around, and he (Chad) got in the middle of it.

 The coach called Child Protective Services (CPS) the following day to report the incident. CPS dismissed the matter as minor, but sent a new worker to the home to give her experience. When Caseworker Intrepid arrived at the home three weeks later, she found Milly on the couch, a young woman with an expressionless face and slurred speech, who smelled of alcohol. On the floor beside her was three-year-old Cassadie, who was pale and strangely inactive for a child her age. The toddler also had a black eye -- caused, Milly said, by falling out of the crib. The house was dirty and cluttered, with some dog feces on the floor, open wine bottles in the kitchen, and very little food in the house.

 Milly apologized for the condition of the house, saying she was having a tough time keeping things up while recovering from surgery. When asked about Frank, Milly said that their relationship was pretty stormy, but she and Frank had lived together on and off for eight years. He worked hard and supported her and the kids, although he drank too much. She categorically denied that he abused the children. He "disciplined" them, she said-which they needed to keep them "in line." She denied that Frank ever beat her. They fought pretty often, and sometimes those fights became physical, but that was all. They "got off' on fighting. They'd never married but were committed to one another.

 Intrepid was so happy with her new case that she removed the children immediately, placing Chad in a group home in San Mateo and Cassadie in an emergency foster home in San Francisco. She also filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). She alleged in support of the petition that Frank had beaten both Chad and Cassadie causing them substantial harm.

 At the detention hearing ten days later, the court appointed Clarence Darrow IV to represent Milly.  Darrow had recently graduated from Harvard, so was confident he could handle this simple matter- even though his copy of California Juvenile Laws and Rules hadn't arrived yet. The court read the petition and detained the children, observing that "it was always better to be safe than sorry in these abuse cases."  The court then asked Milly if Frank was the children's father.  Milly said she wasn't sure.  The court therefore ordered blood tests, which showed that Frank was not the biological father of either child.  Therefore, Intrepid did not give Frank notice of the jurisdictional hearing and listed the children's father as "unknown" in her jurisdictional report.

 At the jurisdictional hearing, the County submitted its case on the social worker's report which recounted (a) the coach's statements to CPS regarding Chad's statements to him and (b) the social worker's observations of Cassadie in the home.  The report also noted that Frank's mother Grammy had contacted the social worker and requested that the children be placed with her; however, the social worker had left for an assignment in another state before she had a chance to check out Grammy's home.  Darrow made no objections.

 Darrow called Chad as a witness. County Counsel responded that (a) it had no duty to subpoena witnesses to testify on behalf of another party, (b) Chad was afraid to testify in front of Frank, and (c) the child's statements in the social worker's report were admissible and sufficient to support jurisdiction under section 355. The court agreed, and Darrow figured the court must know what it's doing. The court found the allegations true under subdivision (a), and Darrow filed an appeal.

 At the dispositional hearing, County Counsel submitted its case on the jurisdictional report. He recommended that the court enter an order removing the children from Milly's custody and continuing them in their current foster placements. Darrow submitted on the County's report and recommendation. The court adopted the County's recommendations, hence it did not direct the County to provide services to reunify the family.

 At that point, Frank entered into the courtroom with his attorney O'Melveny Meyers who had just graduated from Golden Gate and passed the California Bar. Meyers requested leave to address the court and, when granted, submitted that his client had received no notice of hearing in this matter, even though he was statutorily and constitutionally entitled to notice as the father of the children. In support, Meyers proferred copies of voluntary declarations of paternity executed by Fred when both Chad and Cassadie were born. He urged the court to take judicial notice of the declarations, and to recognize his client as a party in this proceeding.

 The court denied Meyers' requests and suggested that Frank's remedy lay with the appellate courts. Meyers immediately filed a petition for writ of mandate.

 

 

QUESTION III
(150 possible points)

THIS IS A TWO-PART ESSAY QUESTION REQUIRING A STATUTORY AND CONSTITUTIONAL ANALYSIS. READ THE FACT SITUATION, THEN ANSWER QUESTIONS A AND B BELOW.

 Eve married Adam in March 1994. She met Golieth six months later and started having an affair with him. Eve also continued to live with Adam and have sex with him too. In March 1995, Eve left Adam and moved in with Golieth. Carrie was born in October 1995. Golieth was present at Carrie's birth, and his name appears as her father on the birth certificate.

 Golieth doted on Carrie: feeding, holding, bathing, rocking, walking, and soothing her, and tending to her every need. In a letter from Eve written soon after Carrie's birth, he was described as doing a "great job as a Dad." Indeed, Golieth and Eve presented to the world the veritable picture of happy unwedded domesticity

 Happily ever after, however, lasted for only a few years. Eve and Golieth broke up in October 1999, when Carrie was four years old. Nonetheless, Golieth continued to see Carrie after work each day and on weekends, when she usually stayed overnight with him. Carrie was deeply bonded to Golieth as her "daddy" and loved being with him. In October 2001, however, Eve cut off all contact between Golieth and Carrie because she and Adam were reconciling. Golieth called Eve incessantly asking to see Carrie, but to no avail.

 Golieth filed a paternity action in January 2002. Adam and Eve quickly moved for summary judgment. At the hearing on the motion, it was not disputed that Carrie is deeply bonded to Golieth as her father and has little or no relationship with Adam. Nonetheless, the court found that Adam and Eve were cohabiting at the time of Carrie's conception and that Adam was not impotent or sterile. It therefore granted summary judgment. Golieth has appealed.

CONGRATULATIONS! I SINCERELY HOPE YOU HAD SOME FUN WITH THIS EXERCISE AND THAT YOU HAVE A WONDERFUL SUMMER. BEST, DONNA FURTH