The law sometimes confuses me:
As a court advocate, what do I really need to know?

Jessica L. Hart, BA
2nd year graduate student in Forensic Psychology
Alliant International University, Fresno

Davin Youngclarke, MA
Instructor of Family and Community Medicine
UCSF Fresno Family Practice Residency Program

The organization of the legal system can be confusing. It is important for all of us who work with children in the foster care system to know the basics of how the law is organized so we can more effectively help children through the court process. There are four kinds of law for us to be aware of: administrative law, Rules of Court, statutory law, and case law. Each type has a different purpose and function. You should be generally familiar with all four.

Special thanks to Beth Kassiola, Jennifer Walter, and Stephanie Leonard for their thoughtful feedback as we developed this article.

1) What is Administrative Law?

In California, the Code of Regulations (CCR) governs state agencies. The CCR is made up of 28 titles that contain the regulatory guidelines for approximately 200 state agencies. The most important title for foster care is Title 22, Division 6. The main chapters for you are:

Chapter 1: Licensing Community Care Facilities
Chapter 5: Group Homes
Chapter 7.5: Foster Homes
Chapter 8.8: Foster Family Agencies
Chapter 9: Adoption Agencies

Various state agencies use these regulations to establish and enforce governing policy. View the entire Code of Regulations

2) What are the California Rules of Court (e.g., Rule 1424)? The Judicial Council, established by the Constitution of California, uses the California Rules of Court to "adopt rules for court administration, practice and procedure not inconsistent with statute..." The California Rules of Court provide a framework or process for court and court-connected procedure. Specifically, Rule 1424 defines a CASA volunteer, the selection and training, duties and responsibilities, removal, resignation, and termination of CASA volunteers. View Rule 1424

All of the California Rules of Court have the force of law.

3) What is Statutory Law?

Statutory law is enacted by the legislature. These laws are called statutes. Federal statutes are created directly by Congress and apply throughout the United States. Laws that are enacted by state legislatures are called state statutes and only apply within that state. Statutory law is considered the primary source of law in the United States. When statutes are organized by subject matter and published in books they are called codes. California statutory law consists of 29 codes. All of the California codes and statutes can be viewed at www.leginfo.ca.gov by clicking on the blue tab at the bottom titled "California Law." Two codes that are especially important for the child welfare system are the California Penal Code and the Welfare and Institutions Code.

What is the Penal Code?

The Penal Code is one of the 29 codes that make up California law. It went into effect January 1, 1873. It contains the statutes that either order or prohibit a person from doing something. If people violate any statute in the Penal Code, there is a specific punishment that they will receive that is listed along with a description of the particular law.

Penal Code Sections That Are Important to You:

• Section 273 et seq. - Harming/endangering a child
  How offending parents are charged
• Section 11160 et seq. - Domestic violence
  How offending spouse is charged and victim protected
• Section 11164-11174 - Child Abuse and Neglect Report Act
  Definitions and required actions of mandated reporters

et seq. means "and the following"

What is the Welfare and Institutions Code?

The Welfare and Institutions Code is also one of the 29 codes that make up California law. The purpose of this code is to create services and programs that supply protection, support, and care of children, including the juvenile court, the probation department, and other agencies listed in the code that provide services to insure the mental, physical, and moral welfare of children.

Code Sections of the Welfare & Institutions Code That You Should Know:

• Section 100-109 - Court Appointed Special Advocates
  Describes program guidelines, CASA qualifications, investigative authority, duties, notices, access to records and confidentiality
• Section 300 et seq. - Defines Jurisdiction of Juvenile Court to Execute Dependency Describes reasons for removing victims of child abuse and neglect
• Section 601 et seq. - Minors Habitually Disobedient or Truant Describes status offenses for minors, e.g., underage drinking, running away
• Section 602 et seq. - Minors Violating Laws Defining Crime Describes criminal offenses for minors, e.g., murder, assault, battery

4) What is Case Law?

Case law is judge-made law. In the absence of a statute to guide the courts, or when an interpretation is needed, judges are left to decide the legal issue. Case law is found in the court decisions of the appellate courts and the supreme courts. Trial courts do not make law. States may have different names for the levels of the court system but most states have trial courts, appellate courts, and a highest court, usually called a Supreme Court.

Case law of California can be viewed at www.findlaw.com/cacases. This website is free but you will need to register in order to view the cases. Findlaw.com also allows you to view federal case law, state codes and laws, find background information about the federal court system, and even find a lawyer in your area.

Key points to remember

• Administrative law deals with the functions of state agencies.
• Rule 1424 sets guidelines for court procedure and program guidelines for CASA programs.
• The primary source of law is statutes.
• In California, the Penal Code and the Welfare & Institutions Code are examples of statutory law.
• There are specific code sections that focus on child abuse and neglect with which you should be familiar.
• Case Law is judge-made law.

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(510) 663-8440  (800) 214-CASA   Fax: (510) 663-8441   E-mail: staff@californiacasa.org