DSS and due process

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Latest post 06-17-2007 5:15 PM by mwocdss. 4 replies.
  • 06-15-2007 12:40 AM

    Question [=?] DSS and due process

    Heres the short summary-

    DSS took my kids in 2003, got them back finally in Aug 2004. Also in June 2004, took 3 day old nursing newborn.

    Essentially a dirty house case. 3 day old was taken under non emergency circumstances, however with no court order, so dss did this as if it was an emergency, when in fact it was not. Got newborn back in 2 days. Due process issue.

    First state civil case (by me) was dismissed on a technical issue, didnt have certain language in it, however county attorney weaseled in the Order 'dismissed on merits', which is really not true. Decision mentions nothing of the kind and no factual review occurred by a trier of fact.

    Judge originally ordered that 1st case was dismissed without prejudice, then i made a motion to reconsider, thats where the Order dismissing on the 'merits' was signed. I tried to object in writing to judge before it was signed, even called the law clerk, but it was signed before judge got my letter.

    2nd state case now filed, county attorney is trying res judicata and collateral estoppel "it already has been judged". I think I can deflect the collateral estoppel as I never litigated the cause, I have case law on that in my favor. But what do i do about the res judicata?

    I am out of appeal on the 1st case, but i suppose I could make a motion to amend the order and if denied, appeal that.

    Please help on the res judicata, thats the one that Im not sure how to deflect.


  • 06-15-2007 10:44 AM In reply to

    re: DSS and due process

    Just FYI, while your case may involve civil rights, your question is one of procedural law.

    The three elements of res judicata are (1) a final judgment on the merits, (2) a unity of parties, and (3) a unity of claims. Clearly, 2 and 3 are met, as is 1, since, as a matter of record, your first case was adjudicated on the merits.

    Your post is somewhat unclear as to how the "dismissed on the merits" language got in the order, but it sounds like you failed to follow appropriate procedure for objecting to the form of the order, and you apparently failed to seek reconsideration or appeal. If you still have time to seek reconsideration, that's probably your only hope.

    Unless you can convince the judge handling your new case that the first case was not adjudicated on the merits, despite what the order says, you'll lose. Query whether the same judge that handled the first case is handling the new case.

    I strongly urge you to consult counsel.
  • 06-15-2007 8:29 PM In reply to

    re: DSS and due process

    is there any way to post privately? If i post the details it gets really obvious whats going on and that might be bad for my case.


  • 06-15-2007 11:57 PM In reply to

    re: DSS and due process

    "is there any way to post privately?"

    No, and I don't contact posters privately (I'm also not licensed in your jurisdiction). You need to consult with someone locally. Consultations should be free.
  • 06-17-2007 5:15 PM In reply to

    re: DSS and due process, looking for lawyer to consult with.

    Thank You for your time. The problems are twofold-

    1. There arent any Attorneys who are both capable and not afraid of the DSS taking THEIR kids.

    2. Cost of a civil action is prohibitive and the way the legal system is engineered, it is unlikely any attorney would be willing to take the case on contingency or pro bono basis. See Tenenbaum v Williams, I talked to Mr. Tenenbaum, He won! but it cost him $250,000, a sum I dont have. I do have the time and skills to do this, though. The piece I dont have is the politics, im not part of the 'network'. See next.

    Separately, the Judge has refused my lawful request for a preliminary conference. It would seem to me based on the law (actually NY Codes and Rules and Regulations 22 NYCRR 202.12), that this is not possible:

    (a) A party may request a preliminary conference at any time after service of process. The request shall state the title of the action; index number; names, addresses and telephone numbers of all attorneys appearing in the action; and the nature of the action. If the action has not been assigned to a judge, the party shall file a request for judicial intervention together with the request for a preliminary conference. The request shall be served on all other parties and filed with the clerk for transmittal to the assigned judge. The court shall order a preliminary conference in any action upon compliance with the requirements of this subdivision.

    I filed a request for preliminary conference as above, but was denied. So this weekend I wrote an 'Order to Show Cause', it is very professional. Im just wondering if there is any reason I shouldnt file the OTSC. It would seem the Judge is already against me.

    Also, I do have funding for consulting with an attorney on matters of strategy and procedural matters. So if you or anyone reading is interested, please leave a message back.


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