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CPS Snatches Wife
July 26, 2005 permalink
Washington lawyer Gary A Preble recounts his experience in saving a girl wanted by child protectors, so much that the child protectors and the judiciary were willing to subvert the law to do so.
July 25, 2005
Please indulge me in hearing today's war story. It is an example of why aggressive dependency attorneys can make a difference and why court-appointed attorneys need to love liberty and sometimes need to take a more aggressive and/or creative approach (and that it doesn't hurt at times to involve an out-of-town attorney).
I am in Olympia, Washington. Mom contacted me the day after court because she and her 16-year-old dependent daughter had both been found in contempt by the juvenile Court Commissioner (a non-elected judicial officer employed by the elected judges) by separate orders. Mom's order said she would go go to jail in 12 days (today) if she had not made steps to undo what she had done, and she wanted to know what could be done to fight the orders. The court and my client are 7 hours away from my office.
What had happened was this: Mom and daughter, who was a dependent child pursuant to a CPS case and living in foster care, had almost completely unrestricted contact (including shopping across the state line in Idaho). Two weeks ago today, they went to Idaho, daughter driving her own car and taking Mom as a passenger. They met daughter's boyfriend who had turned 18 that day; his mother was also there. Mom consented to daughter's marriage and they were married that day under Idaho law. They honeymooned in Washington (by very strange coincidence staying at the same motel my wife and I had stayed 3 days earlier on a trip across state).
The next day there was a scheduled court hearing and the Commissioner became upset that her authority had been circumvented. So, on her own "motion" and without any opportunity for a response to be prepared, she found Mom and daughter in contempt. She had no basis in the contempt law to find contempt, but apparently her irritation at the circumstances got the better of her. She also ordered the daughter back into foster care and ordered no contact between the mother and daughter.
My initial feeling was that there was also no longer any juvenile court jurisdiction because the minor had been emancipated by the marriage. After researching the matter, I found that case law does in fact recognize emancipation by marriage, that the Idaho marriage is entitled to full faith and credit under the US Constitution, and that the Commissioner was completely without grounds to find either Mom or the daughter in contempt. (In other words, piqued that the daughter and mother had circumvented the court's authority, the Commissioner proceeded to circumvent not only Washington statutes but the US Constitution.)
I associated with court-appointed counsel and filed a Motion to Revise (a statutory procedure that allows a commissioner's decision to be heard fresh by an elected judge of Superior Court), submitting 8 pages of research showing from both Idaho statutes and Washington law that the child had been emancipated by marriage, that the court was without jurisdiction, that the mother couldn't withdraw her consent if she wanted to, and that the Commissioner had no lawful basis to find contempt. I also filed a request for stay with the Superior Court at 8:30 this morning, not knowing how the Commissioner would rule at 9:00 and hoping to keep my client out of jail. (The court was too far and travel too costly on short notice, so local counsel presented the motion for stay to the ex parte judge.) The Judge wouldn't sign the stay, saying he would want to look at it further before ruling.
Meanwhile, the parties and other attorneys were in Juvenile Court at 9:00, armed with my legal arguments set out in the Motion to Revise. While I haven't yet spoken to the attorneys, their arguments to the court apparently succeeded. Mom faxed me the three orders entered today:
- "Based upon motion of mother's counsel to vacate contempt ... and argument of counsel ... IT IS ORDERED THAT [the order] holding mother in contempt is hereby vacated and dismissed with prejudice."
- The daughter's contempt was also vacated and dismissed. with prejudice.
- And the third order said: "[A] motion to dismiss--which was being readdressed after further consideration ... IT IS ORDERED THAT the dependency is hereby dismissed based on the child's emancipation by marriage."
While case law indicates the Commissioner technically has no jurisdiction once the Motion to Revise is filed, and while her having entered today's orders under such circumstances suggests perhaps a tendency to not feel constrained by the law and procedures, who am I to complain if the Commissioner wants to essentially commandeer the Motion to Revise, treat it as a motion for reconsideration, and give us everything we wanted? But there is no question it would not have happened without the Motion to Revise.
And best wishes and congratulations to the once again happy bride and groom--after having endured the violation of their civil rights by government employees for what should have been some of the happiest two weeks of their marriage.