Violation Of The Following.docx_0

Violation of the following: WIC 300(A) , 361(D) CAL GOV CODE 820.21(2)(3) TITLE 42, USC SECT 1983, 14141, USC TITLE 18, SECTIONS 241, 245(3) 1203, 241, 242, 1001(1)(2)(3), AND 1203(A) Civil Codes 1569(1)(2)(3), 1570(1)(3), 1571, 1572(1)(3)(4) DISCUSSION

A dismissal for failure to state a claim is subject to de novo review. Kelson v. City of Springfield, 767 F.2d 651, 653 (9th Cir.1985). Dismissal for failure to state a claim is proper only if it appears beyond doubt that the plaintiff would be entitled to no relief under any state of facts that could be proved. Smith v. Fontana, 818 F.2d 1411, 1416 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987). This case is controlled by Meyers v. Contra Costa County Dep't. of Social Servs., 812 F.2d 1154 (9th Cir.), cert. denied --- U.S. ----, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987). I. FAILURE TO SHOW DAMAGES UNDER Sec. 1983 10 A parent's interest in the custody and care of his or her children is a constitutionally protected liberty interest, such that due process must be afforded prior to a termination of parental status. Santosky v. Kramer, 455 U.S. 745, 752-57, 102 S.Ct. 1388, 1394-96, 71 L.Ed.2d 599 (1982); Lassiter v. Dep't of Social Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981). "[T]he relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection." Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 2991, 77 L.Ed.2d 614 (1983). "[E]xisting Supreme Court and Ninth Circuit precedent establish that a parent has a constitutionally protected liberty interest in the companionship and society of his or her child. The state's interference with that liberty interest without due process of law is remediable under section 1983." Kelson, 767 F.2d at 655. 11 While a constitutional liberty interest in the maintenance of the familial relationship exists, this right is not absolute. The interest of the parents must be balanced against the interests of the state and, when conflicting, against the interests of the children. See Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir.1985) (no right to unlimited exercise of religious beliefs regarding corporal punishment); see also Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.) (liberty interest "limited by the compelling governmental interest in protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves"), cert. denied, --- U.S. ----, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987). In this case, child welfare workers clearly were acting pursuant to state statutes authorizing investigations and the initiation of dependency proceedings upon reported child abuse. Cal.Civ.Code Sec. 232.5; Cal.Penal Code Secs. 11160 et seq.; Okla.Stat.Ann. tit. 21 Secs. 845-46 (West Supp.1986).

12 Failure to investigate or intervene when child abuse is suspected can subject a state and its employees to liability. See Krikorian v. Barry, 196 Cal.App.3d 1211, 1214, 242 Cal.Rptr. 312, 313 (1987); Estate of Bailey v. County of York, 768 F.2d 503, 508-11 (3rd Cir.1985); Jensen v. Conrad, 747 F.2d 185, 191-94 (4th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985); Mammo v. Arizona, 138 Ariz. 528, 675 P.2d 1347 (App.1983); Turner v. Dist. of Columbia, 532 A.2d 662 (D.C.App.1987) (special relationship requiring higher duty of care created by filing of child abuse report). Woodrum does not challenge the constitutionality of the child abuse reporting or investigation statutes. He only challenges the constitutionality of the investigations conducted pursuant to admittedly constitutional state statutes. 13 Once it is established that a liberty interest can be weighed against competing governmental interests, it is not enough merely to allege that the government interfered with the family relationship. Santosky, 455 U.S. 745, 102 S.Ct. 1388; see Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972) (states have a legitimate interest in separating neglectful parents from their children). Woodrum's allegation of a violation of liberty rights thus devolves into either a claim that the government acted in a way which violated the substantive protections of the due process clause or a claim that the State failed to provide adequate protections against wrongful deprivations. See Fontana, 818 F.2d at 1415. With one exception discussed below, Woodrum's allegations fall within the category of procedural due process claims. 14 Whether Woodrum's admittedly constitutional liberty interest was violated by any of the child abuse investigations or by the custody determinations requires an analysis of the procedures to be afforded a parent when the government investigates child abuse reports. See e.g., Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). See also Little v. Streater 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981); Lassiter v. Dep't of Social Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In this case, the defendants' actions at most resulted in a court-ordered modification of parental rights, but the investigations did not terminate such rights. Because a report of child abuse triggers the investigation requirements pursuant to Oklahoma and California statutes, the reports here raised a valid governmental interest sufficient for the social workers to intervene for the welfare of the children. 15 The appellants allege that the appellees' actions associated with the removal of Trina Woodrum from Sheryl Rockvoy's home violated several sections of the California Welfare and Institutions Code. They argue that these allegations are sufficient to state a claim under 42 U.S.C. Sec. 1983. Mere negligence or lack of due care by state officials in the conduct of their duties does not trigger the substantive due process protections of the Fourteenth Amendment and therefore does not state a claim under section 1983. Daniels v. Williams, 474 U.S. 327, 33032, 106 S.Ct. 662, 665-65, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). In Daniels the Court said that the question remains open as to "whether something less than intentional conduct, such as recklessness or gross negligence, is enough to trigger the protections of the Due Process Clause." Daniels, 474 U.S. at 334 n. 3, 106 S.Ct. at 667 n. 3. However, in Wood v. Ostrander, 851 F.2d 1212 (9th Cir.1988),

this court held that an intentional assertion of government power that tended to show a disregard of the plaintiff's physical safety may amount to gross negligence, recklessness or deliberate indifference sufficient to overcome the Daniels or Davidson bar and state a claim under section 1983. Wood, 851 F.2d at 1214-15. Wood is consistent with the decisions of a majority of courts of appeals that have addressed the issue of whether recklessness or gross negligence could constitute a deprivation of a liberty interest under the due process clause. Dell Fargo v. City of San Bautista, 857 F.2d 638, 641, n. 5 (9th Cir.1988). In this case, however, we conclude that the allegations contained in the complaint do not rise to the level required to state a claim of gross negligence under Sec. 1983. 16 Because we conclude that plaintiff has not stated a proper claim under 42 U.S.C. Sec. 1983, we need not decide whether the social workers and the SLO are immune from suit.

UNLAWFUL REMOVAL The report CPS generated on January 22, 2008 which states Jenny should stay with her Mother and reunification is set for July 28th. Yet 3 days later, on January 25, 2008 she took Jenny from school. This occurred 43 days after the first removal. Amy listed fraudulent reasons for this second removal. She had not performed any investigations and her claims were based on “here-say”, which is unlawful. 1)No “protective custody warrant” was issued before removal as required by law. There was no “Imminent Danger of serious bodily injury” for minor was in school at the time. WIC 300(a) 2)The

message received on my voice mail from the assistant principal, Ms.

Donahue at Atascadero High school states Jenny was in school all day on January 25th. They state they had no prior knowledge of a removal by any social worker. Jenny didn’t come home from school that day. Was my daughter “Kidjacked”?

Section 300a of the Welfare and Institutions code states: Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted not accidentally upon the child by the child's parent or guardian. For the purposes of this Subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.

WIC 361(c) BURDEN OF PROOF (c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody proceeding, paragraph (6): (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent or guardian with whom the minor resided at the time of injury. The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm. (3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor’s emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian. (4) The minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian.

(5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated or institutionalized cannot arrange for the care of the minor, or a relative or other adult custodian with whom the child has been left by the parent is unwilling or unable to provide care or support for the child and the whereabouts of the parent is unknown and reasonable efforts to locate him or her have been unsuccessful.

Section 361(D) of the Welfare and Institutions code states (d) The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home or, if the minor is removed for one of the reasons stated in paragraph (5) of subdivision (c), whether it was reasonable under the circumstances not to make any of those efforts, or, in the case of an Indian child custody proceeding, whether active efforts as required in Section 361.7 were made and that these efforts have proved unsuccessful. The court shall state the facts on which the decision to remove the minor is based. 1)Amy removed Jenny even though we complied with the “case plan”. We both completed the mental evaluation; I went to Drug and Alcohol for assessment and both obtained counseling.

Section 300b of the Welfare and Institutions code states: “…the court shall give deference to the parent’s or guardian’s medical treatment, non treatment, or spiritual treatment…and shall not assume jurisdiction unless necessary to protect the child”

CAL GOV GODE 821.21 SECTIONS 2 & 3 820.21. (a) Notwithstanding any other provision of the law, the civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings pursuant to Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code shall not extend to any of the following, if committed with malice: (1) Perjury. (2) Fabrication of evidence. (3) Failure to disclose known exculpatory evidence. (4) Obtaining testimony by duress, as defined in Section 1569 of

The Civil Code, fraud, as defined in either Section 1572 or Section 1573 of the Civil Code, or undue influence, as defined in Section 1575 of the Civil Code. (b) As used in this section, "malice" means conduct that is Intended by the person described in subdivision (a) to cause injury To the plaintiff or despicable conduct that is carried on by the Person described in subdivision (a) with a willful and conscious Disregard of the rights or safety of others. Argument: Amy Sensenbach originally took Jenny on 12/9/07 over the door incident. She returned her on 12/14/07. She took Jenny again from school 43 days later without good cause. She did not have a “protective custody warrant and no other incidences occurred. She removed minor solely on “hearsay and then went on a Witch hunt” against the mother to justify the removal. She omitted facts and misled the Court. She failed to disclose exculpatory evidence and the removal was not done properly.

TITLE 42, USC SECT 1983, 14141, Sec. 1983. - Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia TITLE 18 – CRIMES AND PUNISHMENTS PART 1 –CRIMES CHAPTER 55 KIDNAPPING Except as provided in subsection (b) of this section, whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or

conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment. Section 2235. Search warrant procured maliciously Whoever maliciously and without probable cause procures a search warrant to be issued and executed, shall be fined under this title or imprisoned not more than one year. Section 2236. Searches without warrant Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause searches any other building or property without a search warrant, shall be fined for a first offense not more than $1,000; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both. This section shall not apply to any person (a) serving a warrant of arrest; or (b) arresting or attempting to arrest a person committing or attempting to commit an offense in his presence, or who has committed or is suspected on reasonable grounds of having committed a felony; or (c) making a search at the request or invitation or with the consent of the occupant of the premises. FRAUD – TITLE 18 PART 1 – CRIMES CHAPTER 47 – FRAUD AND FALSE STATEMENTS Section 1001. Statements or entries generally (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both. (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. (c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to (1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or

(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate. ALIENATING MINOR WITHOUT JUST CAUSE Section 362.1(1)(A) States: Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well being of the child. Subparagraph (B) basically states the child will be safe and consistent with 3030 of the family code ARGUMENT: My daughter has been continually alienated from me from the start. The return date keeps being extended. There has not been any reunification attempts.