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Last Post 31 Oct 2017 08:59 AM by  FAIRWorkgroups
R-17-0046 Rule 47.3, Rules of Procedure for Juvenile Court
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FAIRWorkgroups
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05 Sep 2017 04:51 PM
    Submitted on behalf of:
    David K. Byers
    Administrative Director
    Administrative Office of the Courts
    1501 W. Washington, Suite 411
    Phoenix, AZ 85007-3327
    Phone: (602) 452-3301
    Projects2@courts.az.gov

    Would add Rule 47.3 to the Rules of Procedure for the Juvenile Court, implementing an amendment to A.R.S. § 8-821(A), which permits a juvenile court in a dependency petition to issue a pre-petition order that authorizes the Department of Child Safety to take temporary custody of a child.

    Comments shall be due on or before October 23, 2017.
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    Warrantsb4seizing
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    19 Oct 2017 04:30 PM
    Kids have a 4th amendment God-given right not to be seized without a warrant or exigency. Parents have a 14th amendment right to legal due process before their children get seized by DCS. If we are seeking to stop Greg McKay & Arizona DCS from unlawfully seizing our AZ kids we need to amend these proposed rules before they go into play. As we know, AZ DCS has violated the God-given rights of tens of thousands of families by failing to promulgate any policy for Investigative Caseworkers to obtain the required warrants before seizing kids. Currently, 36 kids in Arizona are seized daily by AZ DCS while they obtain 0 of the federally required warrants. If there is NO warrant and NO exigency the seizure is unconstitutional.

    A child's seizure from his or her parent's custody without a warrant is presumptively unreasonable.
    Authority: Welsh v. Wis. (U.S. 1984) 466 U.S. 740, 750; People v. Rogers (Cal. 2009) 46 Cal.4th 1136, 1156.

    The Constitution requires a social worker to obtain a warrant before seizing a child from his or her parent's custody, except where there is specific and particularized evidence, at the time of the seizure, that the child is in IMMINENT danger of serious physical bodily injury, and the scope of the intrusion is reasonably necessary to avert that specific injury.
    Authority: Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1473; Bailey v. Newland (9th Cir. 2001) 263 F.3d 1022 5 1033.

    To be considered IMMINENT, the danger must be certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create IMMINENT peril.
    Authority: People v. Victor (1965) 62 Cal.2d 280, 299.

    A child suffering from neglect of a type that could, if their parent's conduct was not modified within a reasonable period of time, lead to long-term harm, does not present an imminent risk of serious bodily harm.
    Authority: Rogers v. County of San Joaquin (9th Cir. Cal. 2007) 487 F.3d 1288, 1297

    Social workers who commit perjury, fabricate evidence, and/or withhold EXCULPATORY EVIDENCE subvert the juvenile court's ability to decide removal and detention questions fairly.
    Authority: Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1382.

    Juvenile proceedings, based on misrepresentation and omission, do notconstitute notice and an opportunity to be heard.
    Authority: Malik v. Arapahoe Cnty. Dep't of Soc. Sen's. (10th Cir. 1999) 191
    F.3d 1306, 1315.

    To support a § 1983 cause of action based on a claim of deception upon judicial officers by a social worker, the plaintiff must show that the social worker deliberately or in RECKLESS DISREGARD of the truth, made false statements or omitted EXCULPATORY EVIDENCE that was MATERIAL to the findings of the juvenile court.
    Authority: Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011, 1035, vacated in part by Camreta v. Greene (2011)131 S.Ct. 2020, 2036.

    Technically true statements may be misleading if EXCULPATORY EVIDENCE is omitted.
    Authority: United States v. Stanert (1985) 762 F.2d 775, 781; see, e.g., United States v. Reilly (2d Cir. 1996) 76 F.3d 1271, 1280.

    Fabricating evidence, making false statements, omitting exculpatory evidence, conducting unlawful seizures, encouraging such actions, and failing to conduct a proper investigation is "outrageous" conduct.
    Authority: Marc v. City of Orlando (M.D. Fla. 2013) 2013 U.S. Dist. LEXI5 149037, *21; Spring v. Brown, 2007 U.S. Dist. LEXIS 675, *20..21
    (E.D. 2007)

    We feel strongly that these new proposed rules should include language mandating JD judges shall adjudicate the propriety of the seizure in a ruling for the record at the PPH. If a warrant was obtained prior to DCS executing their seizure of the children, the seizure was lawful so long as there was no judicial deception in obtaining the warrant. Absent the required warrant, the seizure was unlawful unless the child was faced with an exigency. This court should supply DCS with the law for "EXIGENCY" as DCS is still using "IMPENDING DANGER" that is "Likely" to occur anytime in the next 30 days.

    Getting all EXCULPATORY info before granting any WARRANTS-
    I don't believe it's wise for us to allow hearsay from caseworkers. If we're to allow "reliable" hearsay, we must make the warrant application conducive for the DCS Seizing Worker to supply any and all exculpatory information as evidence to be considered prior to granting a warrant.

    A person acting under color of law who commits a constitutional violation, cannot be immunized by state law. Authority: Martinez v. California (1980) 444 U.S. 277, 284; Wallis v. Spencer (9th Cir. 2000) 202 F.3d 1126, 1144.

    Del McArdle
    602.446.1800
    Terry Hurtado
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    23 Oct 2017 10:34 AM
    Hon. Janet E. Barton
    Presiding Judge
    Superior Court of Arizona in Maricopa County
    125 W. Washington Street
    Phoenix, AZ 85003
    (602) 506-5340
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    23 Oct 2017 04:15 PM
    Hon. Juan Pablo Guzman, President
    Arizona Association of Superior Court Clerks
    P.O. Box 1265
    Nogales, Arizona 85628
    520-375-8133

    The Arizona Association of Superior Court Clerks submits the attached comment recommending modifications and an addition to the original petition.
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    Chris Phillis
    New Member
    Posts:2 New Member

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    23 Oct 2017 04:42 PM
    Christina M. Phillis
    Arizona Bar Membership No. 014871
    Arizona Public Defender Association
    620 W. Jackson, Suite 3076
    Phoenix, Arizona 85003
    Telephone (602) 506-1977
    Fax (602) 506-3609
    Email phillisc@mail.maricopa.gov
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    Warrantsb4seizing
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    23 Oct 2017 04:43 PM
    Honorable Arizona Supreme Court Justices,

    We are requesting you set a date for oral argument on the constitutionality of the current AZ DCS seizing scheme. Many of the same arguments that apply to the current unlawful policies in the DCS "REMOVAL" process will apply to the seizing scheme put in play under these new proposed warrant rules.

    We pray you consider an injunction against the current warrantless seizing scheme used by AZ DCS. The current AZ DCS unlawful seizing policies must NOT be allowed to continue and these proposed rules will NOT resolve our collective failure to safeguard the rights of families facing DCS. We must respect the Constitution and our Oaths while doing the best we can to allow DCS to offer help at-risk youth lawfully. Seizure of a child is traumatic and we should all seek to avoid this extreme action whenever possible.

    Yours truly,
    Del McArdle
    602.446.1800
    delpmca@gmail.com

    Kathryn Blades
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    Posts:1 New Member

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    23 Oct 2017 04:43 PM
    Kathryn R. Blades
    Department of Child Safety
    3003 N Central Ave
    Phoenix AZ
    Kathryn.blades@azdcs.gov
    AZ Bar: 029020
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    Allyson Flanagan
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    26 Oct 2017 04:10 PM
    Lori J. Ford
    Phoenix, AZ
    575-574-2295

    Comment filed October 23, 2017
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    FAIRWorkgroups
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    31 Oct 2017 08:59 AM
    Filed on behalf of:
    David K. Byers
    Administrative Director
    Administrative Office of the Courts
    1501 W. Washington, Suite 411
    Phoenix, AZ 85007-3327
    Phone: (602) 452-3301
    Projects2@courts.az.gov
    Attachments


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