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Regarding a De Facto Parent & 388 question
If I had a foster child since may 2009 when can I file a DE Facto parent?
what is the process of filing a De Facto parent?
How would it help me ?
the bio-mother appreal and file a 388 and she is still
changing (meaning going to drug classes) and it been 14month and her kids are still in foster care . DCFS recommend adoption and tpr. but the mother is making it to all her visit.
Does the judge listen to DCFS?
The bio-mother want the judge to re-open her family reunioncation.
I've filed for de facto in CA and it's very easy. I'll address some of your questions:
1) How to file:
You complete some forms and take it to the court clerk for that Department/Courtroom, they stamp one copy and give it back to you and then the court will notice all other parties in the case (meaning give each party to the case, ie. birthmom, DCFS, etc. a copy of your info and any party, usually birthmom, can challenge it if they want to). I usually take 7 copies to court. I filled out JV295 and JV 296. I have attached a copy of info from ::ADVOKIDS :: It has been a great resource. You can get the de facto info dirctly from their website and I've even called a few times and received some excellent advice.
I also included pictures of us with our fc "happy family" pics and letters of support from daycare provider, our foster agency and the pediatrician.
2) Would it help you?
Yes, a great deal. Without this status you are not a party to the case and basically have little power and little knowledge about what's really going on in the case. If anyone can file it, they should. If someone is eventually going to file for Prospective Adoptive Parent status, they should file this first plus it gives you more rights if needed.
Being a de facto helps because you actually sit at the table with the other attorneys and can speak to the judge directly. You can also hire an attorney to speak for you because you are now a party to the case.
3) As far as the 388, I've heard it's a tough sell to the judge. A birthparent would really have to have completed, or be close to completing their ru plan to make a difference.
Have the birthmom's services been stopped, meanining are you out of the reunification phase and TPR has been scheduled? If TPR has been scheduled you're in a better position because at this point the judge is really looking at the best interest of the child and not at the efforts of the birthmom.
Also, for a 388 the law states that a bp has to have "changed" circumstances, not "changing" circumstances. What this means is that a few months being sober is evidence that a bp's circumstances may be "changing" but they are not there; they haven't proven they can take care of a child by this point. So, many judges will say "good job, you've getting it together but this child needs permanency now".
A judge can decide to not even hear the 388 case or they may choose to hear it so they can deny it and it won't be an issue on appeal.
4) Yes, the judges do listen to DCFS. As long as they keep pushing for TPR and adoption you are in a good position. Does your fc have a GAL/CASA? You need this person's opinion also. If DCFS and the child's attorney are moving for TPR they probably have a pretty strong case. Plus if a child is under 3, things move quicker. Many times they will schedule TPR hearing after the 6 month review if the parents aren't getting it together.
5) When can you file?
As for when to file, I have heard it can be in as little as 4 months with 6 usually being the standard. It's a little early for you to file but you have nothing to lose because if you are denied you can refile at a later date.
Lastly, the birthmom and her attorney, if the birthmom/bd is still around, will always put up motions and delays. I don't blame them and it's just part of the process. Try to be as calm as possible because it's a long road.
Here's the advokids.org info and good luck:
Why de Facto?
Upon a sufficient showing the court may recognize the child’s present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue.
In order to apply for de Facto status, you must complete and file FOUR separate court forms.
JV 295 de Facto Parent Request Form
JV 296 de Facto Parent Statement Form
JV 297 de Facto Parent Order
JV 510 Proof of Service Form
These forms and supporting documentation can be downloaded at the bottom of this page.
How Do You Qualify?
A de Facto parent is a person who is the current or recent caretaker of a child, and who has assumed the role of a parent to a child, fulfilling the child’s physical and psychological need for care and affection on a daily basis. Relevant factors include:
Whether the child has psychologically bonded with the applicant
Whether the applicant has acted as a parent on a day to day basis for a substantial amount of time. (Note: There is no clear requirement of a minimum amount of time, however adoption practices have established a four month period as a guide for establishing parental bonds that should not be disrupted
Whether the applicant has information about the child that the other parties in the case cannot provide
Whether the applicant has regularly attended juvenile court hearings
Rights of De Facto Parents
California Rules of Court 1412(e) state that upon a sufficient showing the court may recognize the child's present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. The de facto parent may:
Be present at the hearing
Be represented by retained counsel or, at the discretion of the court, by appointed counsel
Discovery is the legal right to see the reports and documents that have been filed with the court, i.e., to discover what is in the court’s file. A de facto parent's right to see the other documents in the court file is governed by WIC§ 827 which directs the court to make such discovery orders pursuant to that section as are necessary and appropriate. The court may allow you to have full or limited access to the court file contents, as deemed necessary for meaningful participation in the case.
Appointment of an Attorney
Upon granting de Facto parent status, the court may, but is not required by law to, appoint an attorney to represent the de facto parent. No right to the appointment of counsel exists for the bringing of the application. If you cannot afford an attorney, ask the court to consider appointing one for you.
Preferential Consideration for Placement
In any case in which a child is removed from the physical custody of his or her parents or legal guardians pursuant to WIC §361, a de facto parent, if a relative or licensed foster care provider, shall also receive preferential consideration for placement of the child over all other relatives and foster parents if such placement is in the best interest of the child and is conducive to any reunification efforts ordered by the court.
De Facto Parent Forms and Supporting Documentation
JV 295 de Facto Parent Request form
JV 295 de Facto Parent Request form (fillable)
JV 295 guidelines and instructions
JV 295 sample filled-out form
JV 296 de Facto Parent Statement form
JV 296 de Facto Parent Statement form (fillable)
JV 296 guidelines and instructions
JV 296 sample filled-out form
JV 297 de Facto Parent Order
JV 297 de Facto Parent Order (fillable)
JV 297 Guidelines and Instructions
JV 510 Proof of Service form
JV 510 guidelines and instructions
JV 510 sample filled-out form
JV 295, JV 296 & JV 297 filing and serving instructions
Last edited by mamachell : 09-17-2009 at 10:31 AM.
Bio-mother is bringing drug counsler's to court with her the judge Scheduled to hear 388 and has subpena the social worker to be there also he said he will make a decission on permanency plan.
I am worry becuase the child attorney want to place the children with family that does show up at court but they are not visiting the kids.
the bio-mother want the judge to re-open her family reunification.
is it normal for the bio-mother & family every time they go to court they alway say what the soical worker is not doing?
she not returning there calls or she not allowing them to visit.
You can also file your own 388 to modify a judge's order, like if DCFS wants an order to move a child.
This info is also from the ::ADVOKIDS :: site. You should also go to their website, get their number and give them a call.
Also, I know it's scary but DCFS hasn't actually done anything and doesnt' seem in the process of moving your fc. These are just legal moves, at this point, of the birthmom and her attorney.
Regarding the 388:
You can be heard and get before a judge even when you are not a party and do not qualify for de facto status. Any parent, sibling, or other person having an interest in a child who is a dependent child of the juvenile court may file. Filing a Request to Change Court Order under Welfare & Instutions code §388 is appropriate when:
An immediate hearing is required
Circumstances have changed or there is new evidence
It is in the child’s best interests to modify a previous order
You seek visits, placement, or contact with a dependent sibling in foster care, or on behalf of a child who has a sibling in foster care
(See Welfare and Institutions Code §388 below)
In order to apply for a Request to Change Court Order, you must complete and file three forms, the JV 180 Request to Change Court Order, JV 183 Court Order on Form JV 180, Request to Change Court Order, and the JV 184 Order After hearing on Form JV 180, Request to Change Court Order. If you wish to keep your address confidential, also fill out the JV 182 below.
De Facto Parent
Hi I was wondering if anyone could help answer these questions for me. My husband and I have been fostering to adopt our son for the last 17 months. Judge has scheduled TPR this Dec. for both bio mom and alleged dad. Bio father who was unknown for the last 15 months but recently has been found and he has contacted the dept. He wants a DNA test done to prove he is bio dad. He has a family of his own. What are his chances of getting FR or chances of taking our foster son, if he turns out to bio? What other factors take in to play? It is hard to believe that an alleged or presumed father can just have the right to take him after all this time. We are applying to be de facto parents in hopes this will help us. Thanks for any help on this.
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