How to write a Motion To Dismiss for OCS Juvenile Court In Alaska

The goal here is to show the court that the assessment of harm and neglect against you should have been UNFOUNDED (you are not guilty) and therefore the court has no jurisdiction over the child and should close the case.

You will also want to show that the intake worker lied and coerced you which means that the judges decisions to make your child a ward of the court was based on more than hearsay (which is legal in most juvenile courts) but was based on distortion, misrepresentation, lies, and omission. This would mean that the judge would have to reconsider the evidence.

If you actually DID neglect or harm your child according to the state statutes, and they have shown evidence of it, this will not work for you.

Check out our LEGAL DISCLAIMER before you get started.

Step 1. Download this FREE program to write your Motion To Dismiss in. It is called Open Office.

Step 2. Download this template and open it using the Open Office program.

Step 3. Download this EXAMPLE to see what yours should look like.

CLICK HERE to see an online version - Motion To Dismiss

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

JUVENILE DEPARTMENT

In the matter of

Haiden Tipaloo

Jaiden Tipaloo

Kaiden Tipaloo

Minor Children,

Court Numbers: 16JU00258

16JU00325

16JU00765

MOTION TO DISMISS DUE TO LACK OF JURISDICTION

Comes now Petitioner Jeramey Tipaloo (Father) based upon the attached Declaration, moves the court for a Judgment dismissing the above-captioned cases.

DATED this day of November _____, 2016

_____________________________________

Petitioner, signature

Submitted by:

________________________________________________________________________________

Petitioner, Print Name Address or Contact Address

________________________________________________________________________________

City, State, Zip Telephone or Contact Telephone

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

JUVENILE DEPARTMENT

In the matter of

Haiden Tipaloo

Jaiden Tipaloo

Kaiden Tipaloo

Minor Children

Court Numbers: 16JU00258

16JU00325

16JU00765

MOTION TO DISMISS DUE TO LACK OF JURISDICTION

I, Jeramey Tipaloo (Father), Petitioner in the above proceeding, make this declaration in support of my motion to dismiss the above-captioned cases. I request the court dismiss these cases for the following reasons:

On January 12th, 2016, at 2 p.m.,CPS intake caseworkers Brooke Sinclair, Megan Favreau and (4) Florence P.D. Police Officers made face to face contact with Jeramey J. Tullis.

Intake Worker Brooke Sinclair stated at the door that “We are here to investigate a report of child abuse and neglect,”

I felt I had nothing to hide and was sure that my children had never been abused or neglected, welcomed the intake caseworkers and Florence P.D. Officers into the home.

I have a naturaly loud voice. Mix that with the emotional stress of 4 police and 2 caseworkers entering my home and accusing me of neglect and abuse of my children. My demeanor was as any normal father would be to protect his children from being taken away. My voice was loud and demanding of proof of harm.

The intake worker would not give me any specifics of how I had harmed my children.

I stationed myself leaning backwards on the kitchen bar with my legs crossed and demanded the caseworker for documentation of proof of the allegations.

The intake worker, Brooke Sinclair, sat on the couch silent, looking aimlessly around at coworker Megan Favreau and police officers for answers. 

Meanwhile the two older boys were scared of the situation and kept behind my legs where they felt safe. The oldest boy was intuitivly following my demenor by peeking out from my legs and telling the intakeworker “GO! GO!”

The intake worker made a decision from that scene that there would be inpending danger caused to the children and that it was an emergency to take all 3 children.

I called my wife at work saying “Come home quick! CPS is here and they are taking our children.”

She arrived at home and met the intake workers Brooke Sinclair, and Megan Favreau outside on front step. Brooke Sinclair said “There is reasonable cause to believe that there is a threat of harm in the household.”

When my wife entered the home, she saw me leaning against the kitchen island with my back and Haiden and Jaiden are behind me giggling and playing with each other. They were running around with smiles on their faces while playing

The youngest child was sound asleep in his bassinet in the bedroom.

Intake worker Brooke Sinclair stated to my wife “The children were cowering behind the father.”

My wife asked the CW for a CPS handbook so that we could know our rights. The CW handed her a pamphlet that explained nothing of what was happening at this time and why she had the right to take our children.

My wife asked to speak to Brooke Sinclair’s supervisor (Julie Harper).

The caseworker got on her phone and walked out towards the driveway. After a few minutes she hung up the phone and returned to the front step.

My wife asked why she did not allow her to speak to her supervisor while she had her on the phone.

The CW stated she was not allowed to let her use her phone and she preceded to give my wife her supervisors business card.

My wife immediately attempted to call the supervisor from the house phone and got the answering machine. She then left a voicemail for Julie Harper to contact her as soon as possible.

My wife asked for a court order and the caseworker walked out to her car and grabbed a piece of paper and wrote “Threat of Harm” on it.

Meanwhile, I called his Domestic Violence Advocate Pamela Long at Siuslaw Outreach Services. I stated that Pamela wanted to speak to Brooke Sinclair.

The CW refused to talk to her and stated “I do not have time to talk to her.”

One of the Police officers got on the phone and advised Pamela that CPS was here and they are taking the children into CPS care.

The DV advocate asked to speak to me again, in return she asked me to hand the phone to the CW and that she needed to speak to her.

I handed the CW the phone. As soon as she had it in her hand, she hung it up refusing to speak to the Domestic Violence Advocate.

We both objected to the caseworker’s decision. The Florence Police Department officers and CPS caseworkers both stated that if we interfere with the taking of the children, we would both would be arrested.

Both caseworkers and a officer all cornered Haiden, Jaiden, and my wife all in the laundry room. The intake caseworker said to my wife, “Meaghan if you come with us and leave Jeramey we can get you and your boys into a Hotel room tonight and you can keep your kids, but Jeramey cannot come and cannot have contact with you or the children.”

My wife begged with the caseworker, “Please don’t take our boys, Our boys need us, you don’t how how much trauma you are causing them right now.”

We asked if we could feed the children the meal I had just made for them. The CW said “No we will get them something to eat.”

The caseworker proceeded to get Haiden and Jaiden into the bedroom to get clothes on them.

My wife then asked the CW “Can I please breastfeed our newborn please before you take him? You just woke him up and I do not have a breastpump.

The CW said “No, we have some formula at the DHS office we could give him.”

The second CW, Megan Favreau went into the master bedroom grabbed the baby (Kaiden) from his bassinet where he was asleep. Immediately put him into the car seat and could not figure out how to buckle the infant into the car seat. She then took him to the CPS vehicle.

While we were in the boys bedroom getting the boys clothes, the CW came into the room with clothes too small from a bag marked S.O.S. for donation and put them on the children.

The CW asked for our car seats to transport them and began searching around in closets and rooms for them without any permission. We pulled the car seats out of the living room closet. The CW’s then put the children into the back of their car.

The CW suggested that my wife go with the police escort up to the DHS office in Florence to speak with her more about the reason why CPS was taking our children into protective care.

My wife offered to get some juice for the kids but the CW would not wait for her. I then gave it to a police officer to give to the CW.

My wife took the escort ride up to the local DHS office in Florence. She then waited for the CW half an hour in a room by herself. All she could hear was our children screaming at the top of their lungs.

The intake CW entered the room and said that she had me on the speaker phone. I was distraught and was crying and blaming myself for the children being taken away. My loudness again was taken as proof that there was a impending safety threat.

The CW then preceded to use coercion by telling my wife “You should leave Jeramey and if you want any chance of getting your children back you should sign these papers.” She asked for a copy of them and has never received the copies to this date.

We object to the coercion from the CW to get my wife to sign a plea of guilt at the DHS office in Florence Oregon. She did not know at that time that that paper she signed was a plea of guilt. She hearby resinds her signiture on this form. “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. Florida v. Bostick, 501 US 429 (1991). Coercion can be mental as well as physical. Blackburn v. Alabama, 361 US (1960)

Again, neither of us were told what specific impending threat of harm caused our children to be taken away.

I asked the CW if our children had anything to eat. The CW stated “ We gave them some snacks.”

The pleading filed by the agency contained no information indicating any actual imminent danger to our children or that any one of them had been injured on the day they were removed. The allegations and contentions in the pleading filed by the agency had no factual support. This went against the requirement of 419B.866 (3)(d)

The pleading filed by the agency stated the reason that the children were taken as, “One or both parents’ or caregivers’ behavior is violent and/or they are acting (behaving) dangerously.” CPS has never shown this court any evidence that there was any violence involved between us at any time. The evidence that was submitted to the court only showed that there were arguments and yelling. Never any violence. This went against the requirement of 419B.866 (3)(d)

Oregon law provides that a child may be removed without a court order only if, based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse. Moreover, the agency must show that it is contrary to the welfare of the child to remain in our home, and consistent with the circumstances and ensuring that the child is safe, that reasonable efforts were made to prevent or eliminate the need for removal from their home.

After a child is removed without a court order, Oregon law mandates that CPS show that: (1) there is a continuing danger to the physical health or safety of the child if the child is returned home, or there is evidence of sexual abuse and the child is at substantial risk of future sexual abuse; (2) it is contrary to the child’s welfare to remain in the home; and (3) reasonable efforts were made to prevent or eliminate need for removal.” All of these things must be shown by the agency in order to meet their burden of proof under Oregon Juvinile laws.

CPS did not show this court any one of these mandated requirements were fulfilled because they did not first meet their burden of proof with evidence that there was any violence. This went against the requirements of 419B.866 (3)(c)(d)

CPS could not show that there is a continuing danger to the physical health or safety of the child if the child is returned home or that it is contrary to the children’s welfare to remain in the home because they have never proven that there was a safety threat of violence in the first place. This went against the requirements of 419B.866 (3)(c)(d)

If there is no imminent or inpending dangers such as “severe abuse” “severe harm” according to the definitions of 419B.005, OAR 413-015-0425, OAR 413-015-0115, and OAR 413-015-0115 (47) then there is no safety threat. If there is no safety threat, then this allegation of “One or both parents’ or caregivers’ behavior is violent and/or they are acting (behaving) dangerously.” should have been UNFOUNDED.

CPS has failed to fulfill the requirements of 419B.866 (3)(c)(d) in that they failed to show the court WHAT imminent abuse or severe harm would have befell the children if left at home. Oregon law states that that the intakeworker should be able to describe it. CPS failed to describe it as per OAR 413-015-0115. If it cannot be described then the accusations should have been UNFOUNDED.

The intake worker and the CW have never clearly described and articulated what severe harm was imminant or about to happen. The intake worker and CW have clearly based her finding on a gut feeling.

OAR 413-015-0115 Definitions

  1. Observable” means specific, real, can be seen and described. Observable does not include suspicion or gut feeling.”

CPS knowingly misled the Court with statements in the caseworker’s sworn affidavit and with sworn testimony at the ex parte hearing required by the Oregon Juvinile Code. CPS knowingly misled the court with lies of ommission by not showing the court that there was NO violence in the mother and fathers relationship and there was no violence on the day of the children’s abduction. There was no imminent danger to the children on the evening that the children were removed.

By intentionally and consciously ommiting this important information, shows a doing wrong for dishonest purpose. This went against the requirements of 419B.866 (3)(a)

419B.866 Signing pleadings required; effect of signing or not signing.

(3)(a) Except as otherwise provided in paragraph (d) of this subsection, by signing, filing or otherwise submitting an argument in support of a petition, answer, motion or other paper, an attorney or party makes the certifications to the court identified in paragraphs (b), (c) and (d) of this subsection and further certifies that the certifications are based on the person’s reasonable knowledge, information and belief formed after the making of any inquiry that is reasonable under the circumstances.

(b) A party or attorney certifies that the petition, answer, motion or other paper is not being presented for any improper purpose including, but not limited to, harassing or causing unnecessary delay or needless increase in the cost of litigation.

(c) An attorney certifies that the claims and other legal positions taken in the petition, answer, motion or other paper are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

(d) A party or attorney certifies that the allegations and other factual assertions in the petition, answer, motion or other paper are supported by evidence. An allegation or other factual assertion that the party or attorney does not wish to certify is supported by evidence must be specifically identified. The party or attorney certifies that the party or attorney reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery. [2001 c.622 §20]

This case should have been closed at screening because it did not constitute a report of child abuse or neglect, as defined in ORS 419B.005

(4) Close at Screening: A report will be closed at screening if one of the following subsections applies:

(a) The screener determines that information received:

(A) Does not constitute a report of child abuse or neglect, as defined in ORS 419B.005 or, when applicable, Oregon Laws 2016, chapter 106, section 36, and the screener determines:

  1. That the information describes behaviors, conditions, or circumstances that pose a risk to a child;

Oregon Laws 2016, chapter 106, section SECTION 38. (1) The investigation conducted by the Department of Human Services under section 37 of this 2016 Act must result in one of the following findings:

(a) That the report is substantiated. A report is substantiated when there is reasonable cause to believe that the abuse of a child in care occurred.

(b) That the report is unsubstantiated. A report is unsubstantiated when there is no evidence that the abuse of a child in care occurred.

  1. That the report is inconclusive. A report is inconclusive when there is some indication that the abuse occurred but there is insufficient evidence to conclude that there is reasonable cause to believe that the abuse occurred.

SECTION 39. ORS 419B.005 is amended to read: 419B.005. As used in ORS 419B.005 to 419B.050, unless the context requires otherwise:

(1)(a) “Abuse” means:

(A) Any assault, as defined in ORS chapter 163, of a child and any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.

(B) Any mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.

(G) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child’s health or welfare.

Neither the intakeworker or the caseworker have reported in any way that the children suffered from any “assault”, “Physical injury”, “observable and substantial impairment” or “ substantial risk of harm”. This report should have been unsubstantiated or NOT FOUNDED. There was insufficient information to support this being a disposition of child abuse or neglect.

The Case Progress Evaluation Summary reads; “On January 5th, 2016, the agency received a call of concern for the children in the care of Mr. Tullis and Ms. Gotterba. The agency responded on 1/13/2016 and CPS caseworkers Brook Sinclair, Megan Favreau and Florence Police Officers made face to face contact with Mr. Tullis at his residence in Florence, Oregon.”

The law at ORS 413-015-0210 states that the caseworker must make contact within 5 calendar days. The law also states that the information from an informant must constituted a report of child abuse or neglect as defined in ORS 419B.005. If it does not, then the report must be closed at screening. No where in the caseworkers report to the court or in the original petition to the court did DHS or CPS show that they had met these requirements.

According to 413-015-0210

Determining Department’s Response and Required Time Lines for CPS Information

(1) After the screener completes screening activities required by OAR 413-015-0205, and the screener determines the information received is CPS information, the screener must determine the Department response, either CPS assessment required or close at screening. If a CPS assessment is required, the screener must then determine the time line for the Department response, either within 24 hours or within five calendar days.

(2) CPS assessment required. A CPS assessment is required if:

(a) The screener determines that information received constitutes a report of child abuse or neglect, as defined in ORS 419B.005, and the information indicates:

(A) The alleged perpetrator is a legal parent of the alleged child victim;

(B) The alleged perpetrator resides in the alleged child victim’s home;

  1. The alleged perpetrator may have access to the alleged child victim, and the parent or caregiver may not be able or willing to protect the child;

(3) Response Time Lines. If the screener determines that a CPS assessment is required, the screener must:

(a) Determine the CPS assessment response time line. The time line for the Department response refers to the amount of time between when the report is received at screening and when the CPS worker is required to make an initial contact. When determining the response time, the screener must take into account the location of the child, how long the child will be in that location, and access that others have to the child.

(A) Within 24 hours: This response time line is required, unless paragraph (B) of this subsection applies, when the information received constitutes a report of child abuse or neglect as defined in ORS 419B.005 or, when applicable, Oregon Laws 2016, chapter 106, section 36.

(B) Within five calendar days: This response time line must only be used when the screener can clearly document how the information indicates the child’s safety will not be compromised by not responding within 24 hours and whether an intentional delay to allow for a planned response is less likely to compromise the safety of the child.

(4) Close at Screening: A report will be closed at screening if one of the following subsections applies:

(a) The screener determines that information received:

(A) Does not constitute a report of child abuse or neglect, as defined in ORS 419B.005

419B.005 Definitions. As used in ORS 419B.005 to 419B.050, unless the context requires otherwise:

(1)(a) “Abuse” means:

(A) Any assault, as defined in ORS chapter 163, of a child and any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.

(B) Any mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.

(D) Sexual abuse, as described in ORS chapter 163.

(F) Negligent treatment or maltreatment of a child, including but not limited to the failure to provide adequate food, clothing, shelter or medical care that is likely to endanger the health or welfare of the child.

(G) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child’s health or welfare.

I object to the intake workers witch hunt to try and find something to pin on me. The law states that there must already be a known exigent circumstance existing before conducting a search or seizure without a warrant or court order. This exigent circumstance must directly be associated with harm to the childs life or limb. “Government officials are required to obtain prior judicial authorization before intruding on a parent’s custody of her child unless they possess information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’” Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001)

I object that the intake worker has clearly violated our children’s Fourth Amendment rights. A man demanding his rights and his childrens rights with a loud voice does not equal “violence”.The father was not directing his negative attention to the children. The father was not violently in a physical fight with anyone where a child could get in the way and be harmed. The children had no bruises or marks to show that abuse had already happened to them and that it was impending that it would happen again soon. Two children playing behind their fathers legs does not equal “cowering” as the CW insinuates. Two children hiding behind their fathers legs when 6 people are in the same room arguing with the parent does not equal impending doom, exigent circumstances or imminent danger to the children.

For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person would feel that he is not free to leave, and also either actually yields to a show of authority from police or social workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under arrest. California v. Hodari, 499 U.S. 621 (1991).

Being there was no evidence of an imminent threat of harm to any one of our children, the CPS investigator violated our childen’s clearly established fourth amendment rights.

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Our children are undeniably entitled to stay with their parents without governmental interference.

The CPS investigater had neither a warrant nor probable cause to seize our children.

In order to prevail, therefore, she must have demonstrate a governmental interest sufficient to justify dispensing with constitutional protections. The record before us is devoid of such.

As previously noted, there was no evidence of danger to our children sufficient to implicate the state’s interest in protecting the health, safety, and welfare of them as minors.

You cannot seize childern simply because their parent is yelling.

The social workers were specifically charged with protecting children where there were allegations of abuse. There is no indication in this record of any threat to our children’s safety, nor was she investigating allegations that our children had previously suffered abuse at the hands of their parents.

Under the circumstances, our children enjoyed a clearly established right to maintain their relationship free from interference by state actors.

According to OAR 413-015-0400, when the agency makes a determination of the presence of a safety threat, there are 5 factors that all have to be met and present at the same time in order for it to be FOUNDED.

  1. A family condition is out-of-control.

According to OAR 413-015-0425 “Out of control” means”

  1. (d) “family behaviors, conditions, or circumstances that can affect a child’s safety are unrestrained, unmanaged, without limits or monitoring, not subject to influence or manipulation within the control of the family, resulting in an unpredictable and chaotic family environment.”

The father was in control of himself and restrained by leaning against the kitchen bar and crossing his legs. He only argued his points with a loud voice. He did not threaten anyone, throw things, or break things. He was simply reacting to a situation where officials were trying to take his children without due cause. Even if these actions and attitudes resulted in a chaotic family environment, it did not fullfill the other factors that would have entitled the intakeworker to take the children.

  1. A family condition is likely to result in harm.

According to OAR 413-015-0115 “Harm” means:

  1. “….. any kind of impairment, damage, detriment, or injury to a child’s physical, sexual, psychological, cognitive, or behavioral development or functioning. “Harm” is the result of child abuse or neglect and may vary from mild to severe.”

A father leaning up against a kitchen bar did not show any actions that would likely result in direct harm to his children.

  1. The severe effect is imminent: reasonably could happen soon.

According to OAR 413-015-0115 (47) “Severe harm” means:

(a) Significant or acute injury to a child’s physical, sexual, psychological, cognitive, or behavioral development or functioning;

(b) Immobilizing impairment; or

  1. Life threatening damage.

Even if it were true that the children were cowering behind their father, the intake worker and CW have never seen anything even close to a severe effect or severe harm that was imminent.

  1. The family condition is observable and can be clearly described and articulated.

OAR 413-015-0115 Definitions

  1. Observable” means specific, real, can be seen and described. Observable does not include suspicion or gut feeling.”

The intake worker and the CW have never clearly described and articulated what severe harm was imminant or about to happen. The intake worker and CW have clearly based her finding on a gut feeling.

  1. There is a vulnerable child.

According to OAR 413-015-0115 “Vulnerable child” means:

(53) …..a child who is unable to protect himself or herself. This includes a child who is dependent on others for sustenance and protection.

A “vulnerable child” is defenseless, exposed to behaviors, conditions, or circumstances that he or she is powerless to manage, and is susceptible and accessible to a threatening parent or caregiver.

Vulnerability is judged according to physical and emotional development, ability to communicate needs, mobility, size, and dependence.

According to OAR 413-015-1000

Threat of harm, includes all activities, conditions, and circumstances that place the child at threat of severe harm of physical abuse, sexual abuse, neglect, mental injury, or other child abuse or neglect.

According to OAR 413-015-0425

Present Danger is an IMMEDIATE, SIGNIFICANT, and clearly observable severe harm or threat of severe harm occurring in the present.

According to OAR 413-015-0425

Impending Danger is a state of danger in which family conditions, behaviors, attitudes, motive, emotions and /or situations are out of control and , while the danger may not be currently active, it can be anticipated to have severe effects on a child at any time.

The key word here is severe as in SEVERE HARM and SEVERE EFFECTS.

According to OAR 413-015-0115 statute (47) “Severe harm” means:

(a) Significant or acute injury to a child’s physical, sexual, psychological, cognitive, or behavioral development or functioning;

(b) Immobilizing impairment; or

(c) Life threatening damage.

The CPS’s evaluation should have been decided as UNFOUNDED according to Oregon law and CPS’s own rules. This claim of Neglect and Threat of Harm should never have been brought to this court because it does not fit the statutory definition of child abuse or neglect.

CPS has not shown evidense in any manner that our children have suffered ANY severe harm. Nor have they shown that any severe effects were imminent such as:

  • Significant or acute injury
  • Immobilizing impairment
  • or Life threatening damage

CPS has never proven that our current mental condition placed or will place our children at a threat of severe harm.

The CW has also stated in her Ongoing Safety Plans and the Child Welfare Case Plans that,”There is a long history of domestic violence occuring between Meaghan Gotterba and Jeramy Tullis. The children have wittnessed the DV betweem their parents.”

Although arguing or talking in foul language is not appropreate in front of children or anywhere else, arguing is not part of CPS’s own examples of this mentioned safety threat. CPS has never shown evidence that any of our children “…demonstrates an observable, significant effect.” The term “Family Discord” is not even used in the discriptions of any of the Oregon Safety Threats.

Below is the examples of this peticular Safety Threat as brought out in CPS’s own Screening and Assessment Handbook, Chapter II –

  • Examples:
  • Violence includes hitting, beating or physically assaulting a child, spouse or other family member.
  • Violence includes acting dangerously toward a child or others, including throwing things, brandishing weapons, aggressively intimidating and terrorizing. This includes making believable threats of homicide or suicide.
  • Family violence involves physical and verbal assault on a parent, caregiver or member of the child’s household in the presence of a child; the child witnesses the activity; and the child demonstrates an observable, significant effect.
  • Family violence occurs and a child has been assaulted or attempted to intervene.
  • Family violence occurs and a child could be inadvertently harmed even though the child may not be the actual target of the violence.
  • Parent/caregiver whose behavior outside of the home (e.g., drugs, violence, aggressiveness, hostility) creates an environment within the home which threatens child safety (e.g., drug labs, gangs, drive-by shootings).
  • Due to the batterer’s controlling behavior, the child’s basic needs are unmet.

The federal Adoption and Safe Families Act (ASFA) and Oregon law require Child Welfare caseworkers to make efforts to prevent the need to remove a child from his or her home prior to placing the child in protective custody, to return the child to a parent, and to achieve permanency for a child who cannot be returned to his or her home.

The intakeworker’s wrongful conduct violated clearly established law. Genuine issues of material fact exist regarding the reasonableness of the intakeworker’s conduct.

This blatant disregard for the childrens 4th amendment rights, the states rules and regulations and Federal laws has striped the intakeworker and caseworker of their Qualified Immunity. They both have been trained in their scope of work and clearly went against what a reasonable person would have known.

Qualified immunity shields government officials from liability when they are acting within their discretionary authority and their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982);

Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . . .” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)

I object to the intakeworkers “fishing expedition” and “witch hunt” to try and find a reason to take our children. Even if it was true that the children were “cowering” behind me, the intakeworker clearly did not see a exigent circumstances that would harm life or limb.

Under “Reasons Services Could Not be Provided to Prevent removal Of the Child from the home” in the report to the court, the CW gives the reason “During the initial assessment, Mr Tullis was angry and volatile with the DHS intakeworker. The agency was unable to develop an in-home plan due to Mr Tullis’ lack of cooperation.

Nowhere in the law of OAR 413-015-0400 and nowhere in CPS statutes does it require that an in-home-plan be put into place if there is no reason­able cause to believe that child abuse or neglect occurred or was about to occur soon.

Nowhere in the law of OAR 413-015-0400 and nowhere in CPS statutes does it require that an in-home plan should be put into place if the parent is angry that someone is there trying to take their children away.

It is to only be put into place IF the intakeworker has reason­able cause to believe that child abuse or neglect occurred or it is going to occur soon.

This claimed exigent is less than the real, genuine or bona fide emergency required by the constitutions, federal and state.

The only reason that the intakeworker took the children was because the fathers yelling was of inconvenience to the intakeworker and not of exigent circumstances relating to the children. The fathers yelling was only an excuse to take the children instead of real cause mandated by law.

Being there was NO true exigent circumstances, the caseworker would need a warrant or court order to take the children. If she had persuded a court for a court order or warrant, It would have been based on lies and ommissions as the original petition to the court was.

As the United States Supreme Court has explained: “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” ( Payton v. New York (1980) 445 U.S. 573, 590 [100 S.Ct. 1371, 1382, 63 L.Ed.2d 639].)

A due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not supported by the requisite proof of parental unfitness. Quilloin v. Walcott, 434 U.S. 246, 255, (1978)

The CW has never presented to this court any evidence that was explicitly documented that showed any reasonable efforts were made to prevent removal of two boys that were playing behind their father legs and one infant sleeping in its bed. Just using one of Oregons 16 safety threats title as a reason to take a child and not backing it up with evidence does not fulfill the letter of the law.

Judicial determinations that remaining in the home would be contrary to the welfare of the child and that reasonable efforts were made to prevent removal and to finalize the permanency plan in effect, as well as judicial determinations that reasonable efforts are not required, must be explicitly documented, made on a case-by-case basis, and stated in the court order. A transcript of the court proceeding is the only other documentation that will be accepted to verify that these determinations have been made. Affidavits, nunc pro tunc orders, and references to state law are not acceptable. 45 C.F.R. §1356.21(d). The court, after hearing the evidence, must be satisfied that reasonable efforts . . . have been made. Review and approval of the [state] agency’s report and recommendation alone are not sufficient to meet the requirements of the Act; the court must make a determination that the agency’s efforts were, in the judgment of the court, reasonable for preventing placement. With regard to emergency situations, if the agency’s judgment was that services could not have prevented removal of the child, the court at the time of the adjudicatory hearing must find that the lack of preventive efforts was reasonable.

CPS was never required by the court to provide specific and detailed documentation to prove that Reasonable Efforts were in fact made. 42 C.F.R. Section 1356.21(d) requires documentation of judicial determinations concerning both reasonable efforts and contrary to the welfare findings. They are to be explicitly documented on a case by case basis and so stated in the court order. Facts substantiating the legal conclusion must be stated in the order. Lack of compliance results in denial of federal funds for the child’s foster placement.

According to OAR 413-040-0013

Every 30 days the Ongoing Safety Plan is to be reviewed and updated to be current. Any previously identified Safety Threats that have been reduced or eliminated will be shown to be so.

The caseworker, Stacie Navarro, has never done this.

According to OAR 413-040-0013

Every 30 days there is to be a face-to-face review with parent on progress toward achieving the current Conditions For Return and Expected Outcomes.

This has never been done by the caseworker.

According to OAR 413-040-0016 and OAR 413-040-0010

Every 90 days (or any time within the 90 days) there is to be a full face-to-face current Case Plan review with the parent. This would include reviewing and updating the Ongoing Safety Plan, Action Agreement, Expected Outcomes, and Conditions For Return.

The fact is, after the first separate Action Agreements were signed back in 3/10/16 by both parents, the caseworker has NEVER visited our home or updated anything thru a face-to-face with either parent. To date over 6 months have passed by.

This means that the caseworker has committed malfeasance 28 times (14 times with each parent.)

In fact, the caseworker STILL to this date has not talked to the parents specifically about the conditions for return, expected outcomes, nor has she talked to the parents personally about a case plan where everything is updated. She also has not updated any visitation plan with them. They have never seen any visitation plan other than the original one made at intake almost 6 months ago. In fact, the visitation plan dated 3/2/16 submitted to court in the case file was not even signed by the caseworker or the parents.

And because of the CW’s lack of mandated monthly updates, this means that the caseworker presented false information in the CRB on 7/7/16 and the Oregon Family Decision Meeting on 9/15/16. This also means that the CW passed on false information to the caseworker’s supervisor. This also means that false information was presented to Dr. Basham for the Psych Evaluations by stateing that the parents were in a violent relationship.

And because of the caseworker, Stacie Navarro, not doing her mandated obligations of updating anything, she has thus given false testimony to this court at every hearing so far.

The CW lack of updating the case causes the court to not know the truth. This is basicly a lie of ommission. A lie of omission is to remain silent when ethical behavior calls for one to speak up. A lie of omission is a method of deception and duplicity that uses the technique of simply remaining silent when speaking the truth would significantly alter the other person’s (the judge’s) capacity to make an informed decision.

The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

We are therefore establishing ON THE RECORD that we strongly challenge that any lawfull reason existed to remove our children.

Therefore, we strongly challenge this courts jurisiction over this matter.

We withdraw and rescind any and all signatures to “voluntary” safety and service plans or any other “agreements”. Such signatures were obtained through duress, threat, and coercion. We now explicitly withdraw any consents we gave.

We withdraw any plea of guilt that we were coerced and tricked into signing.

I am petitioning the court to dismiss jurisdiction, close the case, and order that the children are returned home immediately.

I hereby declare that the above statements are true and complete to the best of my knowledge and belief. I understand they are made for use as evidence in court and I am subject to penalty for perjury.

DATED this day of ___________, 20____ .

Petitioner (signature) _________________________________________

Print Name _________________________________________________

Address or Contact Address ____________________________________

City, State, Zip Code __________________________________________

Telephone or Contact Telephone ________________________________

STATE OF OREGON           )

)     ss.

County of Lane )

SIGNED AND SWORN to before me on this ______ day of ______________, 2016.

_____________________

SEAL

Attorney’s signature______________________________________________

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

JUVENILE DEPARTMENT

In the matter of

Haiden Tipaloo

Jaiden Tipaloo

Kaiden Tipaloo

Minor Children,

Court Numbers: 16JU00258

16JU00325

16JU00765

MOTION TO DISMISS DUE TO LACK OF JURISDICTION

Based upon the Motion to Dismiss filed by the plaintiff , IT IS HEREBY ORDERED these cases be dismissed

___ resolving and disposing of all remaining issues and parties (general)

___ disposing of defendant (s) _______________________________________________________ (limited) and it is further ordered this case is dismissed

___ with prejudice

___ without prejudice

DATE: ___________________

______________________________________________

CIRCUIT COURT JUDGE

 

Step 4. Start writing your story of who you are and how you got involved with CPS using the format of the template. Everything that is printed in red must be changed or taken off.

Step 5. When it comes time to talk about a certain subject, use the case law citations and CPS statutes and state law below to back your claims.

 

Alaska takes on the CPS format for their statutes. The thing to remember here is they should not have taken the child if the safety threat was not SEVERE. All 5 of the safety thresholds must be happening at the same time to justify taking the child. In court you can ask in what way all 5 were met.

Alaska

Alaska Child Protective Services Manual

Links to State and Tribal Child Welfare Law and Policy

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Current Through March 2015

Statutes

http://www.legis.state.ak.us/basis/folio.aspexternal link

  • Adoption: Title 25, Chapter 23
  • Child Protection: Title 47, Chapter 17
  • Child Welfare: Title 47, Chapters 10, 70
  • Guardianship: Title 13, Chapter 26, Article 2, §§ 13.26.055 through 13.26.085; Title 47, Chapter 10, § 47.10.110
  • Youth Services: Title 47, Chapter 18, Article 5
Regulation/Policy

http://www.legis.state.ak.us/basis/folioproxy.asp?url=http://wwwjnu01.legis.state.ak.us/cgi-bin/folioisa.dll/aacexternal link

See Title 7, Part 1, Chapter 5, Article 2; Part 1, Chapter 10; Part 4, Chapters 50, 51, 53, 54, 56For Guardianship, see Title 7, Part 4, Chapter 53, Article 2

Other Resources

Alaska Rules of CourtAlaska Office of the Ombudsman

Tribal Code available online:

  • Sitka Tribe of Alaska, Children’s Codeexternal link
  • Tlingit and Haida Indian Tribes of Alaska, Governing Documentsexternal link

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Child Witnesses to Domestic Violence

To better understand this issue and to view it across States, download the PDF (426 KB) of this publication.

Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: A felony offense of domestic violence that was committed in the physical presence or hearing of a child under age 16 who was, at the time of the offense, living within the residence of the victim, the residence of the perpetrator, or the residence where the domestic violence occurred is considered an aggravating factor for sentencing purposes.

In civil law: The court may find a child to be a child in need of aid if it finds by a preponderance of evidence that the child has been subjected to conduct by or conditions created by the parent, guardian, or custodian that have resulted in mental injury to the child, or placed the child at substantial risk of mental injury, due to:

  • Exposure to conduct by a household member against another household member that is the crime of murder, assault, or sexual assault, or the attempt to commit these crimes
  • Repeated exposure to conduct by a household member against another household member that is the crime of reckless endangerment or stalking
Consequences

Domestic violence committed in the physical presence or hearing of a child under 16 years of age is considered an aggravating factor and may allow imposition of a sentence above the presumptive range set out in § 12.55.125.

 

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Definitions of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (587 KB) of this publication.

Current Through February 2016

Physical Abuse

‘Child abuse or neglect’ means the physical injury or neglect, mental injury, sexual abuse, sexual exploitation, or maltreatment of a child under age 18 by a person under circumstances that indicate that the child’s health or welfare is harmed or threatened.

‘Maltreatment’ means an act or omission that results in circumstances in which there is reasonable cause to suspect that a child may be a child in need of aid, as described in § 47.10.011, except that for purposes of this chapter, the act or omission need not have been committed by the child’s parent, custodian, or guardian.

Neglect

‘Neglect’ means the failure of the person responsible for the child’s welfare to provide the child necessary food, care, clothing, shelter, or medical attention.

Sexual Abuse/Exploitation

‘Child abuse or neglect’ includes sexual abuse or sexual exploitation.

‘Sexual exploitation’ includes the following conduct by a person responsible for the child’s welfare:

  • Allowing, permitting, or encouraging a child to engage in prostitution, as prohibited by §§ 11.66.100 through 11.66.150
  • Allowing, permitting, or encouraging a child to engage in actual or simulated activities of a sexual nature that are prohibited by criminal statute

A person commits the crime of sex trafficking in the first degree if the person:

  • Induces or causes a person to engage in prostitution through the use of force
  • As other than a patron of a prostitute, induces or causes a person under age 20 to engage in prostitution
  • Induces or causes a person in that person’s legal custody to engage in prostitution

In a prosecution, it is not a defense that the defendant reasonably believed that the person induced or caused to engage in prostitution was age 20 or older.

Emotional Abuse

‘Mental injury’ means a serious injury to the child as evidenced by an observable and substantial impairment in the child’s ability to function in a developmentally appropriate manner and the existence of that impairment is supported by the opinion of a qualified expert witness.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Alaska Stat. § 47.17.020
A report is required when a mandatory reporter, in the performance of his or her occupational duties, has reasonable cause to suspect that a child has suffered harm as a result of child abuse or neglect.

Persons Responsible for the Child

A ‘person responsible for the child’s welfare’ includes:

  • The child’s parent, guardian, or foster parent
  • The person responsible for the child’s care at the time of the alleged child abuse or neglect
  • The person responsible for the child’s welfare in a public or private residential agency or institution
Exceptions

A religious healing practitioner is not required to report as neglect of a child the failure to provide medical attention to the child if the child is provided treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner of the church or denomination.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ and ‘crime involving domestic violence’ mean one or more of the following offenses or an offense under a law or ordinance of another jurisdiction having elements similar to these offenses, or an attempt to commit the offense, by a household member against another household member:

  • A crime against the person, under chapter 11.41
  • Burglary, under §§ 11.46.300 to 11.46.310
  • Criminal trespass, under §§ 11.46.320 to 11.46.330
  • Arson or criminally negligent burning, under §§ 11.46.400 to 11.46.430
  • Criminal mischief, under §§ 11.46.475 to 11.46.486
  • Terrorist threatening, under §§ 11.56.807 or 11.56.810
  • Violating a protective order, under § 11.56.740(a)(1)
  • Harassment, under § 11.61.120(a)(2)-(4)
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

The term ‘crime involving domestic violence’ has the meaning given in § 18.66.990.

Persons Included in the Definition

‘Household member’ includes:

  • Adults or minors who are current or former spouses
  • Adults or minors who live together or who have lived together
  • Adults or minors who are dating or who have dated
  • Adults or minors who are engaged in or who have engaged in a sexual relationship
  • Adults or minors who are related to each other up to the fourth degree of consanguinity, whether of the whole-blood or half-blood or by adoption, computed under the rules of civil law
  • Adults or minors who are related or formerly related by marriage
  • Persons who have a child of the relationship
  • Minor children of a person in a relationship that is described above

 

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Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Mandated reporters shall report immediately when they have reasonable cause to suspect that a child has suffered harm as a result of abuse or neglect.

A person providing, either privately or commercially, film, photo, or visual or printed matter processing, production, or finishing services or computer installation, repair, or other services, or Internet or cellular telephone services who, in the process of providing those services, observes a film, photo, picture, computer file, image, or other matter and has reasonable cause to suspect that it visually depicts a child engaged in sexual conduct described in § 11.41.455(a) shall immediately report the observation, including all information known about the nature and origin of the film, photo, picture, computer file, image, or other matter.

Content of Reports

The department’s written report shall include:

  • The names and addresses of the child and the child’s parents or other persons responsible for the child’s care, if known
  • The age and sex of the child
  • The nature and extent of harm to the child from abuse
  • The name, age, and address of the person believed to be responsible for the harm to the child
  • Information that may be helpful in establishing the identity of the person responsible for the abuse
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

A practitioner of the healing arts involved in the delivery or care of an infant who the practitioner determines has been adversely affected by, or is withdrawing from exposure to, a controlled substance or alcohol shall immediately notify the nearest office of the department of the infant’s condition.

Agency Receiving the Reports

Reports of suspected abuse or neglect must be made to the Department of Health and Social Services. If the reporter cannot reasonably contact the nearest office of the department and immediate action is necessary for the well-being of the child, he or she shall make the report to a peace officer. The peace officer shall immediately take action to protect the child and shall, at the earliest opportunity, notify the nearest office of the department.

A person reporting suspected child pornography shall make his or her report immediately to the nearest law enforcement agency.

Initial Screening Decisions

The department shall immediately notify the nearest law enforcement agency if the department:

  • Concludes that the harm was caused by a person who is not responsible for the child’s welfare
  • Is unable to determine:
    • Who caused the harm to the child
    • Whether the person who is believed to have caused the harm has responsibility for the child’s welfare
  • Concludes that the report involves:
    • Possible criminal conduct
    • Abuse or neglect that results in the need for medical treatment of the child

A law enforcement agency shall immediately notify the department of the receipt of a report of harm to a child from abuse.

Agency Conducting the Assessment/Investigation

The department may, upon receipt of the report, refer the matter to the appropriate health or social services agency if the child resides within the boundaries of a local government. For cases not referred to an agency of a local government, the department shall, for each report received, investigate and take action, in accordance with law, that may be necessary to prevent further harm to the child or to ensure the proper care and protection of the child.

A local government health or social services agency receiving a report of harm shall, for each report received, investigate and take action, in accordance with law, that may be necessary to prevent further harm to the child or to ensure the proper care and protection of the child. In addition, the agency receiving a report of harm shall forward a copy of its report of the investigation, including information the department requires by regulation, to the department.

Assessment/Investigation Procedures

In investigating child abuse and neglect reports, the department may inquire about the criminal records of the parents or of the alleged abuser, including about the existence of a criminal history record involving a serious offense.

The investigation shall be conducted by a person trained to conduct a child abuse and neglect investigation, without subjecting a child to more than one interview about the abuse or neglect except when new information is obtained that requires further information from the child.

An interview of a child may be audiotaped or videotaped. If the interview concerns a report of sexual abuse of the child by a parent or caregiver, the interview shall be videotaped unless videotaping the interview is not feasible or will, in the opinion of the investigating agency, result in trauma to the child.

An interview of a child that is audiotaped or videotaped shall be conducted by a person trained and competent to conduct the interview and, if available, at a child advocacy center. An interview of a child may not be videotaped more than one time unless the interviewer or the investigating agency determines that one or more additional interviews are necessary to complete an investigation. If additional interviews are necessary, the additional interviews shall be conducted, to the extent possible, by the same interviewer who conducted the initial interview of the child.

During a joint investigation by the department and a law enforcement agency, the department shall coordinate an investigation of child abuse or neglect with the law enforcement agency to ensure that the possibility of a criminal charge is not compromised.

Timeframes for Completing Investigations

Upon receipt from any source of a report of harm to a child from abuse, the department shall notify the Department of Law and investigate the report and, within 72 hours of the receipt of the report, shall provide a written report of its investigation of the harm to a child from abuse to the Department of Law for review.

Classification of Reports

This issue is not addressed in the statutes reviewed.

Parental Drug Use as Child Abuse

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Current Through April 2015

A practitioner of the healing arts involved in the delivery or care of an infant who the practitioner determines has been adversely affected by, or is withdrawing from exposure to, a controlled substance or alcohol shall immediately notify the nearest office of the Department of Health and Social Services of the infant’s condition.

A person commits the crime of endangering the welfare of a child in the second degree if the person, while caring for a child under age 10:

  • Causes or allows the child to enter or remain in a dwelling or vehicle in which a controlled substance is stored in violation of chapter 11.71
  • Is impaired by an intoxicant, whether or not prescribed for the person, and there is no third person who is at least age 12 and not impaired by an intoxicant present to care for the child

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Representation of Children in Child Abuse and Neglect Proceedings

To better understand this issue and to view it across States, download the PDF (806 KB) of this publication.

Current Through August 2014

Making The Appointment

Whenever in the course of proceedings instituted under this chapter it appears to the court that the welfare of a child will be promoted by the appointment of an attorney to represent the child, the court may make the appointment. If it appears to the court that the welfare of a child in the proceeding will be promoted by the appointment of a guardian ad litem (GAL), the court shall make the appointment. Appointment of a GAL or attorney shall be made under the terms of § 25.24.310.

The court shall appoint counsel, pursuant to Administrative Rule 12, for a child when the court determines that the interests of justice require the appointment of an attorney to represent the child’s expressed interests.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The court shall make every reasonable effort to appoint a GAL from among persons in the community where the child’s parents or the person having legal custody or guardianship of the child resides.

In court rules: A GAL should possess the knowledge, skill, experience, training, or education that allows the GAL to conduct an independent, thorough, and impartial investigation and to advocate effectively for the best interests of the child.

The GAL should have an understanding of the following as appropriate to the case:

  • Child development from infancy through adolescence
  • The impact of child abuse and neglect on the child
  • The impact of child in need of assistance (CINA) proceedings, including out-of-home placement and the restriction or termination of parental rights, on the child
  • Unique issues related to families involved in CINA proceedings such as substance abuse, domestic violence, and disabilities
  • Community and other resources available for placement, treatment, and other necessary services for abused or neglected children
  • The ethnic, cultural, and socioeconomic backgrounds of the population to be served
  • The Indian Child Welfare Act and the prevailing social and cultural standards of the Indian community in which the child, parent, Indian custodian, or extended family resides or maintains social and cultural ties
  • Alaska and applicable Federal statutes, rules, and supreme court decisions relating to CINA proceedings
  • The ability to research and develop special areas of knowledge as appropriate or necessary in a given case
Specific Duties

The court shall require a GAL when, in the opinion of the court, representation of the child’s best interests, to be distinguished from preferences, would serve the welfare of the child. The court in its order appointing a GAL shall:

  • Limit the duration of the appointment of the GAL to the pendency of the legal proceedings affecting the child’s interests
  • Outline the GAL’s responsibilities
  • Limit the authority to those matters related to the guardian’s effective representation of the child’s best interests in the pending legal proceeding
How the Representative Is Compensated

The court shall notify the office of public advocacy if the office is required to provide GAL services. The court shall enter an order for costs, fees, and disbursements in favor of the State and may further order that other services be provided for the protection of a minor or other child.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Case planning will occur for all families who have an open case (in-home or out-of-home).

Case plans will be created and distributed to all appropriate parties within 60 days of assuming custody. For Family Services cases without custody, case plans will be created and distributed to all appropriate parties within 30 days of opening the case for services or no later than 30 days from the case transfer date.

Who May Participate in the Case Planning Process

The agency will develop a case plan using the Family Services Assessment (FSA) process for each parent, legal guardian, or Indian custodian who is subject to an open Office of Child Services (OCS) case, with or without custody, in-home or out-of-home.

The agency will work with each parent/guardian/custodian individually in developing his or her own case plan. Each case plan will be written using language that the parent/guardian/custodian can understand and include services they request to meet their identified needs.

In order to develop the case plan for a child, the Protective Services (PS) Specialist must meet with the child at least one time face-to-face, or more frequently as the child needs. The PS Specialist also must collect information about the child from various other sources to learn enough about the child to form the child’s case plan. The child’s guardian ad litem and/or court-appointed special advocate and the child’s Tribe should be invited to participate in the development of the child’s case plan, if appropriate.

The PS Specialist will develop the case plan document after meeting with the child and parents, collecting collateral information, reviewing documents, and completing the trauma screening.

Contents of a Case Plan

Case planning will encompass the issues of child safety, well-being, permanency, cultural continuity, and Indian Child Welfare Act (ICWA) compliance. Each case plan will have the following components:

  • A primary and secondary permanency goal
  • A description of efforts to prevent out-of-home placement for the child and efforts to involve parents, children, and the Tribe in the case planning process
  • A description of the safety threats and/or high-risk factors that required OCS to open a case with the family
  • The parent/caregiver’s perception regarding the safety and risk factors and his or her understanding of why OCS is involved
  • A description of the parent’s strengths related to the way he oe she feels, thinks, or acts protectively towards his or her child
  • A description of the behaviorally specific goals established between the parent and PS Specialist
  • The activities, tasks, and services that will help the parent achieve his or her case plan goals to enhance protective capacities
  • How OCS will help the parent achieve the goals, who is responsible for what, and reasonable timelines by which to participate in the required services

The child’s portion of the case plan will include services to ensure safety, permanency, and well-being and to facilitate the child’s permanency goal. This may include mental health services, medical services, early periodic screening, developmental services, educational services, family contact with each parent and with siblings, and cultural continuity. The plan also will include strategies for ensuring the educational stability of the child while in foster care, including:

  • Assurances that the child can remain enrolled in the same school, if possible
  • If remaining in such school is not in the child’s best interests, assurances by the agency and the local school district to provide immediate and appropriate enrollment in a new school, with all of the educational records of the child provided to the school

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

If the court determines that reasonable efforts are not required to be provided, the court shall hold a permanency hearing for the child within 30 days after the determination.

Within 12 months after the date a child enters foster care, the court shall hold a permanency hearing. The court shall hold a hearing to review the permanent plan at least annually until implementation of the plan is successful. If the plan approved by the court changes after the hearing, the Department of Health and Social Services shall promptly apply to the court for another permanency hearing, and the court shall conduct the hearing within 30 days after application by the department.

Persons Entitled to Attend Hearings

In all cases under this chapter, the child, each parent, the Tribe, foster parent or other out-of-home care provider, guardian, and guardian ad litem of the child, and each grandparent of the child shall be given notice of the proceedings and the possibility of termination of parental rights and responsibilities.

The department shall give advance written notice of all court hearings to a child’s grandparent if:

  • The grandparent has contacted the department, provided evidence of being the child’s grandparent, requested notice about the hearings in the child’s case, and provided the department with a current mailing address.
  • The department is aware that the child has a grandparent and the grandparent’s mailing address is on file.

The department is not required to give advance notice to a grandparent about hearings in a child’s case if the grandparent:

  • Has been convicted of a crime in which the child was the victim
  • Is prohibited by a court order from having contact with the child

The department, the child, and the child’s parents, guardian, and guardian ad litem are entitled, when good cause is shown, to a permanency hearing on application. If the application is granted, the court shall afford these persons and their counsel reasonable advance notice and hold a permanency hearing where these persons and their counsel shall be afforded an opportunity to be heard.

Determinations Made at Hearings

At each hearing, the court shall determine:

  • Whether the department has made reasonable efforts to offer appropriate family support services to the parent
  • Whether the parent has made substantial progress to remedy conduct or conditions in the home
  • If the plan is for the child to remain in out-of-home care, whether the child’s placement continues to be appropriate
  • Whether the department has made reasonable efforts to finalize the permanent plan for the child
Permanency Options

When establishing the permanency plan, the court shall determine whether:

  • The child should be returned to the parent or guardian.
  • The child should be placed for adoption or legal guardianship and a petition for termination of parental rights be filed by the department.
  • There is a compelling reason that the most appropriate placement for the child is in another planned, permanent living arrangement and the department has recommended the arrangement under § 47.14.100(p); the findings under this paragraph must include the steps that are necessary to achieve the new arrangement.

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Determining the Best Interests of the Child

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Current Through March 2016

It is in the best interests of a child who has been removed from the child’s own home for the State to apply the following principles in resolving the situation:

  • The child should be placed in a safe, secure, and stable environment.
  • The child should not be moved unnecessarily.
  • A planning process should be followed to lead to permanent placement of the child.
  • Every effort should be made to encourage psychological attachment between the adult caregiver and the child.
  • Frequent, regular, and reasonable visitation with the parent or guardian and family members should be encouraged.
  • Parents and guardians must actively participate in family support services to facilitate the child’s being able to remain in the home. When children are removed from the home, the parents and guardians must actively participate in family support services to make return of their children to the home possible.

Numerous studies establish that:

  • Children undergo a critical attachment process before the time they reach 6 years of age.
  • A child who has not attached with an adult caregiver during this critical stage will suffer significant emotional damage that frequently leads to chronic psychological problems and antisocial behavior when the child reaches adolescence and adulthood.
  • It is important to provide an expedited placement procedure to ensure that all children, especially those under age 6, who have been removed from their homes are placed in permanent homes in a timely manner.

In making its dispositional order, the court shall keep the health and safety of the child as the court’s paramount concern and consider:

  • The best interests of the child
  • The ability of the State to take custody and to care for the child and to protect the child’s best interests
  • The potential harm to the child caused by removal of the child from the home and family environment

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The parent’s parental rights may be terminated if the court finds by clear and convincing evidence that:

  • The child has been subjected to conduct or conditions described below.
  • The parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm.
  • The department has complied with requirements concerning reasonable efforts.

Any of the following may be grounds for termination:

  • The parent has abandoned the child.
  • The parent is unable to discharge his or her parental duties due to:
    • Emotional illness, mental illness, or mental deficiency
    • Use of alcohol or controlled substances
    • A conviction and incarceration for a felony, and the parent has not arranged for the child’s care
  • The parent has subjected the child to circumstances that pose a substantial risk of harm, including, but not limited to, abandonment, torture, chronic mental injury, chronic physical harm, or sexual abuse.
  • The parent’s conduct or neglect has resulted in serious physical or mental injury to the child.
  • The child has been in foster care for 15 of the most recent 22 months, and reasonable efforts to rehabilitate the parent have failed.
  • The parent has been convicted of:
    • Homicide of a parent of the child or a child
    • Aiding, abetting, attempting, or soliciting to commit a homicide of a parent of the child or a child
    • A felony assault that resulted in serious bodily injury to a child
  • The child has been sexually abused as a result of the parent’s conduct or failure to protect the child.
  • The parent has willfully failed to provide the child with needed medical treatment.
  • The child has committed an illegal act as a result of pressure, guidance, or approval from the parent.
  • Parental rights to another child of the parent have been involuntarily terminated and conditions that led to the termination have not been corrected.
Circumstances That Are Exceptions to Termination of Parental Rights

The Department of Health and Social Services shall file a petition for termination of parental rights when the child has been in foster care for at least 15 of the most recent 22 months unless:

  • The department has documented compelling reasons why termination of parental rights would not be in the best interests of the child. This may include the child being cared for by a relative.
  • The department is required to make reasonable efforts according to the case plan and has not provided to the parent the family support services that the department has determined are necessary for the safe return of the child to the home.
Circumstances Allowing Reinstatement of Parental Rights

After a termination order is entered and before the entry of an adoption or legal guardianship decree, a person who voluntarily relinquished parental rights to a child under this section may request a review hearing, upon a showing of good cause, to vacate the termination order and reinstate parental rights relating to that child. A court shall vacate a termination order if the person shows, by clear and convincing evidence, that reinstatement of parental rights is in the best interests of the child and that the person is rehabilitated and capable of providing the care and guidance that will serve the moral, emotional, mental, and physical welfare of the child.

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

When a child is removed from a parent’s home, the Department of Health and Social Services shall place the child, in the absence of clear and convincing evidence of good cause to the contrary:

  • In the least restrictive setting that most closely approximates a family and that meets the child’s special needs, if any
  • Within reasonable proximity to the child’s home, taking into account any special needs of the child and the preferences of the child or parent
  • With, in the following order of preference:
    • An adult family member, as defined below
    • A family friend who meets the foster care licensing requirements established by the department
    • A licensed foster home that is not an adult family member or family friend
    • An institution for children that has a program suitable to meet the child’s needs
Requirements for Placement with Relatives

For the purpose of determining whether the home of a relative meets the requirements for placement of a child, the department shall conduct a criminal background check from State and national criminal justice information. The department may conduct a fingerprint background check on any member of the relative’s household who is age 16 or older when the relative requests placement of the child.

Evidence of good cause not to place a child with an adult family member or family friend includes grounds for denial of a foster care license under § 47.35.019 or 47.35.021. Poverty or inadequate or crowded housing do not constitute good cause.

In regulation: An abbreviated procedure may be applied in granting a variance for a requirement contained in this chapter for a foster home headed by a relative of a child. This procedure applies only for the specific relative child or children. If a different relative or a nonrelative child is to be received in the home, any variance granted must be reviewed and approved by the division.

In evaluating a relative applicant for a license, the licensing representative will discuss with the applicant and document any recommended variance from a requirement. The supervisor will review the evaluation to ensure the health, safety, and well-being of the child is protected and, if approved, will forward the license for issuance under regular procedures.

Requirements for Placement of Siblings

The department shall make reasonable efforts to place siblings in the same placement if the siblings are residing in the same home when taken into the custody of the department. If siblings are not placed together after reasonable efforts have been made, the case supervisor for the division with responsibility over the custody of children shall document in the file the efforts that were made and the reason that separating the siblings for placement purposes is in the best interest of the children. In this subsection, ‘sibling’ means two or more persons who are related by blood, adoption, or marriage as a child of one or both parents.

Relatives Who May Adopt

The child may be adopted by an adult family member. An ‘adult family member’ is a person who is age 18 or older and who is:

  • Related to the child as the child’s grandparent, aunt, uncle, or sibling
  • The child’s sibling’s legal guardian or parent
Requirements for Adoption by Relatives

Taking into consideration a child’s stated preference under § 25.23.125(a) and consent given under § 25.23.040(a)(5), and unless the court finds that a petition to adopt the child by an adult family member is contrary to the best interests of the child, the court shall grant a petition to adopt a child by an adult family member who has had physical custody of the child for at least 12 consecutive months before the parental rights to the child have been terminated.

Unless directed by the court, an investigation and report are not required in cases in which the person to be adopted is within the fourth degree of lineal or collateral consanguinity to the petitioner.

 

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Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

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Current Through March 2016

What Are Reasonable Efforts

The responsibilities of the Department of Health and Social Services include the duty to:

  • Identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid
  • Actively offer the parent or guardian, and refer the parent or guardian to, those services
  • Document its actions
When Reasonable Efforts Are Required

The department shall make timely efforts to provide family support services to the child and parents that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate.

If the child cannot be returned home safely, the department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan and complete whatever steps are necessary to finalize the permanent placement of the child.

When Reasonable Efforts Are NOT Required

The court may determine that reasonable efforts are not required if the court has found by clear and convincing evidence that:

  • The parent has subjected the child to circumstances that pose a substantial risk of harm, including abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm.
  • The parent has committed or attempted to commit murder of the other parent of the child or has committed felony assault that results in serious physical injury.
  • The parent has failed, during the preceding 12 months, to participate in family support services.
  • The department cannot identify and locate the parent.
  • The parent has a mental illness and will be unable to care for the child in the foreseeable future.
  • The parent has a previous conviction for a crime involving a child and, after the conviction, the child was returned to the parent and later removed because of an additional substantiated report of physical or sexual abuse.
  • A child has suffered substantial physical harm as the result of abuse or neglect by the parent or by a person known to the parent, and the parent knew or reasonably should have known that the person was abusing the child.
  • Rights to another child have been previously terminated, and conditions in the home have not been remedied.
  • The parent is incarcerated for a substantial period of time during the child’s minority.

The department is not required to make reasonable efforts to return the child to his or her family home if the department took emergency custody of an infant under § 47.10.142 after the infant was abandoned safely within the meaning of § 47.10.013(c).

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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OCS Statutes & Rules

2.2.5 CONDUCTING AN INITIAL ASSESSMENT

AUTHORITY:

25 U.S.C. §§ 1901–1923 Indian Child Welfare Act of 1978 (ICWA)

42 U.S.C. § 5106a(b)(2)(A) Grants to States for Child Abuse and Neglect Prevention and Treatment Programs

AS 47.10.093Disclosure of Agency Records

AS 47.17.027 Duties of School Officials

AS 47.17.030 Action on Reports;Termination of Parental Rights

AS 47.17.033 Investigations

7 AAC 54.040 Release of Child Protection Information to Persons with Legitimate Interests

7 AAC 54.150 Disclosure of Child Protection Information to Other States

P.L 113-183 Preventing Sex Trafficking and Strengthening Families Act of

PURPOSE: To collect sufficient information regarding the allegations contained in the report to complete initial assessment to form an assessment of the family, which will then inform decisions and guide if safety interventions are needed.

BACKGROUND INFORMATION:

A. Federal Law:

In order to receive funding under the Child Abuse Prevention and Treatment Act, each state is required to operate a statewide program, relating to child abuse and neglect that includes:

1. procedures for reporting known or suspected instances of child abuse and neglect and procedures for the immediate screening, risk and safety assessment, and prompt initial assessment of such reports;

2. policy and procedures to address the needs of infants born and identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure; and

3. provisions and procedures for referral of a child under the age of 3 who is involved in a substantiated case of child abuse or neglect to early intervention services.

4. For any child or youth over whom the State agency has responsibility for placement, care, or supervision and who the State has reasonable cause to believe is, or is at risk of being, a sex trafficking victim (including children for whom a State child welfare agency has an open case file but who have not been removed from the home, children who have run away from foster care and who have not attained 18 years of age and youth who are not in foster care but are receiving services. The State agency shall report immediately, and in no case later than 24 hours after receiving, information on missing or abducted children or youth to the law enforcement authorities for entry into the National Crime Information Center (NCIC) database of the Federal Bureau of Investigation, established pursuant to section 534 of title 28, and to the National Center for Missing and Exploited Children

B. State Law:

1. The department is required to investigate reports of child abuse or neglect and take action, in accordance with law, that may be necessary to prevent further harm to the child or to ensure the proper care and protection of the child.

2. When the department has determined that an interview at school is a necessary part of an initial assessment to determine whether the child has been abused or neglected and the interview at school is in the best interest of the child, school officials shall permit the child to be interviewed at school by the department before notification of, or receiving permission from, the child’s parent, guardian, or custodian. A school official shall be present during the interview at school unless the child objects or the department determines that the presence of the school official will interfere with the initial assessment.

3. Immediately after conducting an interview authorized under this section, and after informing the child of the intention to notify the child’s parent, guardian, or custodian, the department shall make every reasonable effort to notify the child’s parent, guardian, or custodian that the interview occurred unless it appears to the department that notifying the child’s parent, guardian, or custodian would endanger the child.

POLICY:

A. All initial assessments shall be conducted by an Office of Children’s Services (OCS) Protective Services (PS) Specialist who has been trained to conduct child abuse and neglect initial assessments and trained in assessing safety.

B. Documentation will be entered into ORCA within five business days of contact with the following individuals:

1. Alleged victim(s);

2. Siblings and other children in the home;

3. Caregiver(s);

4. Alleged perpetrator; or

5. Collateral contacts (includes, but not limited to other household members, Tribal partners, service providers, school personnel and neighbors).

C. An initial assessment involves making contact within the assigned response timelines in order to:

1. Gather safety-related information;

2. Determine present and impending danger (10 threats);

3. Determine child vulnerability;

4. Determine if the parent or caregiver can or cannot and/or will or will not protect;

5. Determine whether to substantiate or not substantiate child abuse or neglect;

6. Determine risk level.

7. Determine whether the child may be eligible for membership in an Indian Tribe.

D. The information gathering process requires contact with collaterals, and in most circumstances will require collaboration with other agencies and/or Tribes to gather necessary information, develop sufficient safety plan, analyze safety threats, and complete the initial assessment and safety assessment.

E. PS Specialists must quickly identify, contact, and share information with its Tribal partners, in the spirit of cooperation, to the extent permitted by law.

1. If the report of abuse or neglect involves an Indian child, OCS will make diligent efforts to identify the child’s Tribe, and notify the child’s Tribe or the local community Tribe of the existence of the report as soon as practicable.

2. Formal proof of membership is not necessary; informal verbal confirmation by an authorized Tribal representative is sufficient. OCS will invite the Tribe to participate in the initial assessment.

F. The initial assessment must be completed within 30 days of assignment.

G. All documentation must be entered into ORCA within 15 days of the completion of the initial assessment. H. Protective Services (PS) IVs must approve the initial assessment or recall/return to the PS Specialist within 7 days of receiving the initial assessment in ORCA.

I. Information received that indicates that a child is missing, abducted or has been a victim of sex trafficking or at risk for, will be reported immediately, within 24 hours to law enforcement for entry into the National Crime Information Center (NCIC) and the Intake Unit:

PROCEDURES:

The required initial assessment activities are outlined below. The activities are described in a logical order in these procedures, but the actual order in which they occur is controlled by the specific circumstances in a given case.

A. Review Records:

The assigned PS Specialist will:

1. Thoroughly review the Protective Services Report (PSR).

2. Thoroughly review any paper and electronic records maintained by OCS for historical information on the family and the child. In particular, the PS Specialist should look for:

a. prior PSRs;

b. court records;

c. prior evaluations (substance abuse/mental health);

d. safety plans;

e. worker safety concerns

3. Make diligent efforts to contact another state’s child welfare agency when the PS Specialist has information that the family has lived in another state. The PS Specialist should request records, if any, related to CPS history or interventions.

4. Request and review information from the Alaska Public Safety Information Network (APSIN) on adults listed in the PSR. The PS Specialist should look for: a. any charges that could indicate safety concerns for the PS Specialist; b. any charges that correlate to allegations.

5. Inquire with child’s Tribe to see if there is a pending child protection case in the Tribal court and review any court orders that are provided by the Tribal court. If there is a Tribal court order the PS Specialist should consult with the AAG.

6. At the initial meeting, the PS Specialist will give the parent or guardian a copy of the OCS brochure “Parent’s Rights: What You Need to Know About a Child Protection Initial Assessment.” The PS Specialist will encourage the parent to review this material closely and will inform the parent that they have the right to deny interviews or access to their home by the state and (if applicable) the Tribal worker. The PS Specialist must also explain the potential consequences of not cooperating with the initial assessment. Potential consequence may include but are not limited to, OCS having to make a decision regarding the child’s removal without the benefit of having the parent’s side of the story.

B. Determining Tribal Affiliation:

1. At the outset of every case, the PS Specialist will investigate to determine whether the child may be a member or eligible for membership in an Indian Tribe. If a child’s ICWA eligibility cannot be confirmed, the case will be treated like an ICWA case and active efforts will be provided until it is determined that the child is not eligible under ICWA.

2. If the child is believed to be Alaska Native or American Indian, the PS Specialist will verify the child’s Tribal affiliation as soon as possible by contacting the Tribe(s) believed to be the child’s Tribe, based on the information received from a Tribal representative and document the following information in an activity note, and complete the child’s ICWA Tab in ORCA:

a. the name, position, and contact information of the Tribal representative;

b. the date of contact;

c. how contact was made (email, phone, fax, etc.)

d. the nature of the child’s affiliation, if any, with the Tribe (for example, whether the child is a member of the Tribe, whether the child is eligible for membership in the Tribe, and whether one of the child’s parents is a member of the Tribe); and

e. transfer the information into the child’s ICWA Tab in ORCA. C. Information Sharing with Tribes: If a Tribal representative requesting information the PS Specialist will (detailed policy under 6.1.2 Confidentiality Section):

1. Determine if the Tribe as an agreement with OCS to share information under specific areas (list of Tribes posed on OCS website);

2. Determine which information is protected by law or otherwise specifically protected and will not be shared in compliance with 6.1.2 Confidentiality.

D. Collaboration with Tribes:

1. Before the initial contact with the parent or guardian the PS Specialist will:

a. contact the child’s Tribe and

b. invite the Tribal representative to participate in the initial assessment

c. inquire with the Tribe how OCS can be culturally appropriate during the initial assessment;

d. the PS Specialist will disclose that a PSR was received but not the allegations in the report unless the above conditions outlined in (C) above have been met.

2. If the child’s Tribe is unknown or not physically present in the community the child lives in, contact a Tribal representative in the area where the child lives and invite them to be present at the initial contact with the parent/guardian.

3. If a Tribal representative is not present, the PS Specialist will inform the parent of their right to request one present and right to postpone the interview. OCS will honor a request to postpone and interview but will take immediate action to keep a child safe, if necessary.

4. If a parent or guardian requests to limit or exclude Tribal involvement, the PS Specialist must document the objection to Tribal involvement in ORCA activity note. The PS Specialist will inform the parent or guardian that certain child protection information may be shared with Tribes:

a. to assist with OCS’s initial assessment; or

b. to aid in providing services or placing a child if releasing the information is in the child’s best interest; or

c. the child’s Tribe asks for information from OCS and indicates the request is for a purpose related to child protection, including investigating the allegations in the PSR.

5. If the parent or guardian does not ask to limit or exclude Tribal involvement, the PS Specialist will invite the child’s Tribe or the local Tribe to continue to participate in OCS’s initial assessment. The invitation should be documented. The PS Specialist will then:

a. ask that the Indian child’s Tribe or local Tribe share information with OCS to ensure a more complete initial assessment and avoid interference and/or duplication of efforts;

b. share all relevant information within OCS’s possession that is not protected by law or special privilege (see (B)(2) above).

c. consult with the Tribal representative after meeting with the parent or guardian to review the interview, discuss investigative findings, and discuss what referrals and services may be appropriate for the family.

6. The PS Specialist shall consult with a PS Specialist IV or AAG if uncertain as to whether child protection information should be shared with the Tribe.

7. The PS Specialist will coordinate any interview with an Indian child — with law enforcement, school employees, or the PS Specialist, etc. — with the Tribe to reduce the number of interviews and minimize trauma to the child.

E. Collaborate with the Military: If the child is a member of an active-duty military family, the PS Specialist will:

1. Notify the local military personnel designated by state and regional protocol agreements.

2. Coordinate the initial assessment with the designated military personnel.

3. Consult with the PS Specialist IV and review letters of agreement to determine protocol and specific responsibilities for the initial assessment when the family lives on or off base or post.

F. Collaborate with Law Enforcement:

1. The local law enforcement agency will be notified verbally or by fax determining need for collaboration in the assessment if one or more of the following exists:

a. Allegation of sexual abuse;

b. Allegation of physical or sexual abuse involving an out-of-home care provider or a person who is not responsible for the child’s welfare, or the PS Specialist is unable to determine who caused the harm to the child or whether the person believed to have caused the harm has responsibility for the child’s welfare;

c. Allegation of abuse or neglect where the alleged victims required immediate medical care;

d. Allegation of abuse or neglect where there’s a suspected methamphetamine lab and/or drug distribution occurring.

e. Information on children or youth who are missing or have been victims of sex trafficking. OCS staff member will contact law enforcement for entry into the NCIC and Intake Unit immediately, no later than 24 hrs after receiving  information.

2. If an allegation of sexual abuse or severe physical abuse exists, the PS Specialist will make a referral to the Child Advocacy Center (CAC) serving the area. For outlying communities, the referral will be made according to the multidisciplinary team protocol. If a child discloses sexual abuse during an initial assessment of physical abuse or neglect, the PS Specialist will coordinate an interview at the CAC.

a. The PS Specialist will fax information from the protective services report to the CAC and request the CAC to arrange and coordinate with OCS and law enforcement for an interview with the child. Any information about reporter’s identity will be redacted prior.

b. If there is a non-offending caretaker, they will be requested to accompany the PS Specialist and the child to the CAC or will be requested to give permission for the child to be taken to the CAC.

c. If the non-offending caretaker refuses to allow the child to be transported, or there is no non-offending caretaker, the PS Specialist will determine if there is probable cause to assume emergency custody by consulting with their AAG in order to transport the child to the CAC to be interviewed.

d. Coordination of the interview and any necessary follow up medical examination(s) and services will be completed according to the Multidisciplinary Team protocols.

e. In accordance with Alaska Statute, all sexual abuse interviews will be videotaped unless videotaping will result in trauma to the child.

3. A PS Specialist will not interview a child more than once unless new information is obtained, and the new information constitutes the need for an additional interview performed as described above.

4. If additional interviews are determined necessary then the same PS Specialist will conduct follow up interviews with the child to the extent possible.

5. Every effort will be made to coordinate the interview with the necessary members of the initial assessment team to minimize trauma to the child, (OCS PS Specialist and law enforcement officer at the minimum).

H. Contact Collateral Sources:

1. The PS Specialist shall contact collateral sources (people who may have significant information about the alleged incident, past incidences, or general family functioning, including adult and child functioning) who can clarify or supplement the information in the referral and in records already reviewed.

2. Collaterals may include but are not limited to:

a. extended family members;

b. child care providers;

c. next door neighbors;

d. doctors;

e. teachers, school principals, school nurse;

f. community health aides;

g. police, public safety officers;

h. Tribal representatives and service providers

3. The PS Specialist will gather information from collateral sources throughout the initial assessment. I. Consult with a PS Specialist IV:

1. The PS Specialist will consult with a PS Supervisor regarding the nature of the allegations and safety related information contained within the report and confirm the planned approach before beginning the initial assessment.

2. The PS Specialist and PS Supervisor discussion will include:

a. information in the PSR;

b. notification to others (i.e. Tribe(s), law enforcement);

c. initial assessment coordination with others (Tribe(s), CAC, law enforcement);

d. approaches to ensure PS Specialist safety;

e. approaches to ensure successful contact and interviews with family, (i.e. timelines, cultural considerations, victim ages, etc.)

J. Worker Safety:

1. When the safety of the PS Specialist conducting the initial assessment is of concern, a request for an escort should be made to the local law enforcement agency.

2. If law enforcement is unable to assist, the PS Specialist and PS Supervisor should consult with the OCS attorney to determine what steps to take.

K. Initial Contact:

1. The PS Specialist will meet face-to-face with, and interview, the alleged victim, his or her siblings, and other children living in the home.

a. The PS Specialist will clearly identify themselves, orally reaffirm the first and last name of the child once they are presented at start of interview, and clearly explain the purpose of the interview and show identification if requested.

b. The purpose of the face-to-face interview is to determine:

1) whether or not the child has been abused or neglected;

2) child vulnerability;

3) child’s immediate safety;

4) child functioning and family functioning;

5) assess for impending danger; and

6) Tribal affiliation(s)

c. The PS Specialist will make diligent efforts to contact the child at home, school, childcare, or any other place where the PS Specialist believes the child may be found.

d. If the child will be contacted at his/her school the PS Specialist will consult with their PS Specialist IV prior to that initial contact to assess whether or not the presence of a school official may be detrimental to the interview. Factors to consider include:

1) whether school official(s) have a personal connection to the child and/or the child’s family that may pose a conflict or jeopardize confidentiality.

2) whether the child is old enough and expresses an objection to the presence of a school official.

3) whether school officials have previously demonstrated that their presence is disruptive to the interview process (in those situations, Protective Services (PS) Managers II should be made aware and efforts to work on relationships and roles will be made).

e. Upon arriving at the designated school, the PS Specialist shall provide the school official with a copy of the Request to Interview letter (06-9785) that outlines OCS authority and school officials’ responsibility regarding interviews on school property. The PS Specialist will always encourage and allow a school official to be present during the interview unless justification, such as above, is present or the child objects. If such conditions are present, the PS Specialist will document in their activity notes (the one noting face-to-face with victim) that the school official was or was not allowed and why if they weren’t. If a school official was not available or chose not to sit in during the interview, the PS Specialist should note this in their activity note as well.

f. After a PS Specialist interviews a child, the PS Specialist will make every reasonable effort to immediately notify the child’s parents, guardian, or custodian that the interview occurred unless the PS Specialist believes that notifying the parents, guardian, or custodian would endanger the child or compromise the CPS or criminal initial assessment. Notification may be temporarily delayed with written PS Specialist IV approval placed in an initial assessment contact note in ORCA.

g. The PS Specialist shall attempt an unannounced home-visit to the parent’s residence immediately following the interview to inform the parent that the interview occurred and to further assess safety and continue the information collection process.

h. If a PS Specialist, having reasonable cause to suspect a child has suffered physical harm as a result of child abuse or neglect, takes photographs of the areas of trauma visible on the child without the permission of the child’s parents, guardian, or custodian, the PS Specialist will notify the child’s parents, guardian, or custodian of the action as soon as possible.

i. All children will be interviewed separately and away from the alleged  perpetrator and/or any other adult who could compromise the initial assessment process. This does not include the Tribal representative, unless a parent has asked to have them excluded.

j. If the parent or guardian refuses access to the child, the parent or guardian will be informed that law enforcement assistance or a court order could be obtained to gain access to the child.

1) If information indicates the child is in present danger the PS Specialist will: immediately request law enforcement assistance to enter the home and gain access to the child. · immediately contact the Department of Law in order to gain a writ of assistance authorizing immediate access, if law enforcement assistance is unavailable or refused.

2) If the child is not believed to be in present danger, the PS Specialist will contact the Department of Law to consult about the case.

k. If the parents are unavailable and the report indicates the child is alone in the house and in immediate danger, follow step (I)(1)(j)(1)) above.

l. If it is not possible for the PS Specialist to make a face-to-face contact within the timeframes, the PS Specialist will document why contact was not made.

m. The PS Specialist will make continued diligent efforts to make contact with the alleged victim until safety can be established.

n. The PS Specialist IV must approve any delays in making face-to-face contact with the alleged victim, his or her siblings, and other children living in the home.

2. The PS Specialist will meet face-to-face with, and interview, the non-offending parent or caregiver.

a. The purpose of this face-to-face contact and interview is:

1) to gather information related to the safety of the child;

2) determine what the non-offending parent or caregiver knows about the alleged child abuse or neglect;

3) gather information to determine protective factors ;

4) gather information to determine if the parent or caregiver can or cannot and will or will not protect the child;

5) gather information for adult and family functioning;

6) assess for domestic violence; and

7) determine Tribal affiliation(s).

b. The PS Specialist will provide the parent or caregiver with the Parent’s Rights Brochure. The PS Specialist will explain that the parents have the right to not participate in the initial assessment and to have a Tribal representative present.  

c. If it is not possible for the PS Specialist to make a face-to-face contact with the non-offending parent, the PS Specialist will document why contact was not made.

d. The PS Specialist will make continued diligent efforts to make contact with the non-offending parent.

3. The PS Specialist will meet face-to-face with, and interview, the other adults living in the home.

a. The purpose of this face-to-face contact and interview is:

1) to find out what the other adults in the home know about the alleged child abuse or neglect;

2) gather information related to the safety of the child;

3) gather information for adult, child and family functioning; and

4) gather information regarding Tribal affiliation.

b. If it is not possible for the PS Specialist to make a face-to-face contact with the other adults living in the home, the PS Specialist will document why contact was not made.

c. The PS Specialist will make continued diligent efforts to make contact with the other adults living in the home. 4. The PS Specialist will meet face-to-face with (whenever possible), and interview, the non-custodial legal parent.

a. The purpose of this contact and interview is to:

1) gather information for adult, child and family functioning;

2) gather custody information that may impact the decision-making process;

3) assess for domestic violence;

4) provide notification of initial assessment; and

5) gather information regarding Tribal affiliation.

b. If it is not possible for the PS Specialist to make contact with the other noncustodial legal parent, the PS Specialist will document why contact was not made.

c. The PS Specialist will make continued diligent efforts to make contact with the non-custodial legal parent.

5. The PS Specialist will meet face-to-face with, and interview, the alleged perpetrator. a. If the alleged perpetrator lives in the home, the purpose of this face-to-face contact and interview is to:

1) find out what the alleged perpetrator knows about the alleged child abuse or neglect;

2) gather information related to the safety of the child;

3) gather information for adult, child and family functioning;

4) assess for domestic violence; and

5) gather information regarding Tribal affiliation.

b. At the time of the initial contact with the alleged perpetrator, the PS Specialist will advise the alleged perpetrator of the allegation(s).

c. In sexual abuse and serious physical abuse cases in which one of the parents/caretakers is suspected to be the offender, the PS Specialist will:

1) speak with the reporter and any appropriate collaterals before the first visit with the child and family to obtain any additional information.

2) coordinate with law enforcement to ensure that a criminal investigation is not compromised;

3) avoid interviewing the alleged perpetrator until law enforcement has decided against conducting any further interviews;

4) avoid interviewing the alleged perpetrator if that individual has been formally charged with a criminal offense. The PS Specialist should contact the alleged perpetrator only when required for child protection proceedings and in connection with the case plan.

5) make immediate contact with the non-offending parent following the guidelines under (I) Initial Contact.

d. If the alleged perpetrator lives out of the home and is not a parent or legal guardian, the PS Specialist will coordinate with law enforcement regarding what type of contact, if any, OCS should have with the alleged perpetrator.

e. the PS Specialist will need to coordinate with law enforcement to conduct interviews on the siblings of the victim as soon as possible, to determine if the abuse has occurred and what the future risk is.

6. The PS Specialist will conduct at least one home visit during the course of the initial assessment. During the home visit, the PS Specialist will: a. observe and discuss the physical condition of the child, including any observable effects of child abuse or neglect;

b. observe and discuss the emotional status of the child, including mannerisms, signs of fear, and developmental status;

c. observe and discuss the reactions of the parents or caregivers to OCS concerns;

d. observe and discuss the emotional and behavioral status of the parents or caregivers during the interviewing process;

e. observe and discuss parent’s protective factors;

f. observe and discuss the interactions between family members, including verbal and body language;

g. observe and discuss the condition of the child’s living space, including where the child sleeps; and a general observation of the entire residence.

h. observe and discuss the physical condition of the home that affects the safety of the child.

7. If the child is Alaska Native or American Indian, the PS Specialist will coordinate the home visit with a representative of the child’s Tribe in order to ensure a Tribal representative attends the home visit with the PS Specialist, unless the parent has opted to exclude Tribal involvement.

L. Determine if Present Danger Exists:

The PS Specialist will identify whether present danger exists and, when applicable, develop a plan, as outlined in section 2.2.5.1.

M. Determine If Impending Danger Exists:

After determining whether present danger exists the PS Specialist will assess for impending danger, using the Impending Danger Assessment and Analysis (IDAA),. The IDAA should be completed in ORCA.

N. Determining Future Risk and Needs (FRAN):

The PS Specialist will determine future risk of abuse and neglect by completing the FRAN in ORCA.

O. Finalizing the Initial assessment when the Child is Safe and the Risk Level is Low/Medium:

If the PS Specialist finds the child is safe, there is no present or impending danger and the risk level is low or medium, the PS Specialist will:

1. Identify in ORCA whether the finding is substantiated, not substantiated, or closed without a finding.

2. Refer the child to Early Intervention services for a developmental screening if the report was substantiated and the child is under the age of 3 years.

3. Review the initial assessment safety assessment and disposition with the PS Specialist IV.

4. Send the initial assessment to the PS Specialist IV for approval.

5. If there is no currently open case, upon receiving approval, the PS Specialist will submit the case for closure.

P. Finalizing the Initial Assessment When the Child is Unsafe and/or the Risk Level is High:

If the PS Specialist finds the child is unsafe, there is present or impending danger, and/or the risk level is high, the PS Specialist will:

1. Identify in ORCA whether the finding is substantiated or not substantiated.

2. Refer the child to Early Intervention services for a developmental screening if the report was substantiated and the child is under the age of 3 years.

3. Complete any documentation needed.

4. Review the initial assessment and substantiation decision with the PS Specialist IV.

5. Establish a Continuing Safety Plan.. ·

Note: If there are no impending danger threats and a High FRAN, but the family refuses services, the PS Specialist IV or PS Specialist must consult with the AAG’s office regarding whether the circumstances warrant a petition for supervisory or full legal custody. Document the legal consultation in an ORCA activity note as an AAG consult. If a petition will not be filed, document any referrals that were made for the family prior to closing the case.

6. Send initial assessment to the PS Specialist IV for approval; opening the case with or without custody as appropriate.

Q. Documenting the Initial Assessment:

The PS Specialist will document the Initial Assessment in ORCA by following the directions in the ORCA How Do I Guide.

R. Process for Expedited Initial Assessment Documentation for Safe and Low-Medium Risk Cases:

1. An expedited process for initial assessment completion may be used when it has been determined through sufficient information collection and a supervisory case staffing that the children are safe with no unresolved present danger, no impending danger and low to medium risk.

2. There may be some exceptions to this expedited documentation process (e.g. extensive CPS history, aggravated circumstances, supervisor/manager discretion) when the standard documentation requirements would apply. PSRs on open Family Services cases are not appropriate for the expedited process. All elements of the safety model remain.

3. The decision to proceed with the expedited process is to be made on a case by case, worker by worker basis. The decision to use the expedited process should never be based on workload issues. If an office is facing a work load/staff turnover crisis, the Regional Review Panel process should be considered.

4. The four components of an expedited initial assessment completion include:

a. FRAN;

b. Impending Danger Assessment and Analysis (IDAA);

c. Minimum documentation requirements (see below); and

d. Supervisory case staffing/enhanced supervisor staffing note

5. During the initial assessment process the PS Specialist will gather the following information about the children and adults in the home:

a. Maltreatment:

1) details about the symptoms and type of maltreatment (injuries, conditions present);

2) details about the severity;

3) circumstances and events associated with the maltreatment;

4) duration of the maltreatment;

5) explanation of the maltreatment by offending and non-offending parents;

6) attitudes of the caregivers about the maltreatment;

7) other contributing factors that should be considered.

b. Family Summary:

1) demographics (age, sex, name);

2) safety issues and how the family responds to them, including protective factors;

3) information learned from child(ren), parents and collaterals regarding child protection issues;

4) child and adult functioning (emotional, behavioral, developmental and medical well being);

5) discipline, parenting and supports of the parents;

6) impact of substance abuse, domestic violence, mental illness, physical health issues and trauma on family functioning;

7) cultural strengths and family connections;

DEFINITIONS:

Collateral Contact: A person who may have significant information about the alleged incident, past incidences, or general family functioning (e.g. teachers, neighbors, service providers, Tribal staff, etc.). Contacting collaterals is one of the most critical components of the information collection process. Cultural Competency: Acceptance and respect for differences in the way people live, parent, and provide for their families. “Acceptance and respect for difference, continuing self assessment regarding culture, attention to the dynamics of difference, ongoing development of cultural knowledge and resources and flexibility within service models to work towards better meeting the needs of minority populations.” (Cross, Bazron, Dennis, & Isaacs, 1989).

Impending Danger: Refers to a family situation in which a child is not in present danger but exists in a general state of danger because of what is happening within the child’s family. It refers to a state in which family conditions, behaviors, attitudes, motives, emotions and/or situations are out of control and can have a severe effect on a child at any time.

Initiation: Initiation is achieved by conducting a face-to-face contact with the alleged victim for the purpose of assessing their safety.

Present Danger: Significant and clearly observable family condition occurring in the present tense, is endangering or threatening to endanger a child, and requires a prompt response from the agency.

Protective Action: A protective action occurs the same day that it is determined the child is unsafe and provides a child with responsible adult supervision and care. Typically a protective action will include developing a plan that contains a straightforward immediately achievable arrangement such as: arranging and confirming that the parent or caregiver who is the alleged perpetrator will leave and remain away from the home; arranging for a parent or caregiver who is not the alleged perpetrator to leave home with the child; using people and resources available to the family to immediately protect the child; or placing the child, with the parent’s consent, in a relative placement. When the parents are unwilling or unable to follow or support a plan, the protective action may consist of emergency custody and placement in foster care or an appropriate temporary shelter facility.

Protective Factors: Parental characteristics that have been shown to make positive outcomes more likely for children and their families; and to reduce the likelihood of child maltreatment. : ·

  • Parental Resilience – managing stress when faced with adversity, ·
  • Social Connections – having positive, supportive relationships, ·
  • Knowledge of Parenting and Child Development – knowing how to parent and having realistic expectations of children, ·
  • Concrete Supports in Times of Need – access to services when needed, and · Social and Emotional Competence of Children – healthy family and child interactions that help children grow up to be happy and healthy.

Safe: Children are considered safe when there is no present danger or impending danger threats, or the caregivers’ protective factors control existing threats.

Safety Threat: Refers to a specific condition or behavior, emotion, motive, perception, attitude, or factors of a family member that creates a situation where there is potential for severe harm to a child.

Safety Analysis: An examination of safety intervention information; safety threats (concerned with impending danger threats) as identified by the safety assessment; and parent/caregiver protective factors. The purpose of a safety analysis is to determine if a child is unsafe and to determine the necessary level of intrusion and level of effort required to assure child safety.

Safety Assessment: This term refers to a philosophy of intervention and a process to which we go about our work and the information collection process during the initial assessment. Sex trafficking: The term “sex trafficking” means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.” This includes severe forms of trafficking a person including;

1. sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or

2. the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Unsafe: Children are considered unsafe when they are vulnerable to present or impending danger and caregivers are unable or unwilling to provide protection or lack the protective factors to ensure the child will be safe.

Vulnerable Child: A child who is dependent on others for protection, is susceptible to experience severe consequences based on size, mobility, social or emotional state; is generally under the age of 6, but also can include older children, especially those who are vulnerable to the authority and influence of adults within their family; has mental or physical disabilities; may be isolated from the community; is in poor health or has limited physical capacity and robustness or is frail. A vulnerable child may also be a child who consciously or unknowingly provokes or stimulates threats and reactions by their parent or other adult caregiver.

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2.2.5.1 PRESENT AND IMPENDING DANGER AND THE CHILD SAFETY PLAN

AUTHORITY:

AS 47.17.030 Actions on Reports; Termination of Parental Rights

42 U.S.C. 5106 a (b)(2)(A)Grants to States for Child Abuse and Neglect Prevention and Treatment Programs

Federal Register Vol. 81, No. 114 Rules and Regulations (effective 12/12/16)

PURPOSE:

To ensure child safety by accurately identifying present or impending danger and implementing a Child Safety Plan to provide the child with responsible adult supervision and care in the home.

BACKGROUND INFORMATION:

A. Federal Law:

1. In order to receive funding under the Child Abuse Prevention and Treatment Act, each state is required to operate a statewide program, relating to child abuse and neglect, that includes procedures for reporting known or suspected instances of child abuse or neglect and procedures for the immediate screening, risk and safety assessment, and prompt investigation of such reports.

2. A parent or Indian custodian consent to a foster care, the placement must be executed in writing. For consent to foster care placement, the parent or Indian custodian may withdraw consent for any reason, at any time, and have the child returned.

B. State Law:

The Office of Children’s Services (OCS) is required to investigate reports of child abuse and neglect and take action, in accordance with law, that may be necessary to prevent further harm to the child or to ensure the proper care and protection of the child.

POLICY:

A. Assessment of safety occurs during the initial assessment process and continues during each contact with the family while the case is open for services, regardless of custody or placement.

B. If present or impending danger exists, the Protective Services (PS) Specialist must take action to ensure child safety.

C. The Child Safety Plan (06-9775) must be developed in collaboration with the parents and their supports including the Tribe for ICWA eligible children.

D. The Child Safety Plan form will be used to document the action needed to keep the child(ren) safe.

E. The PS Specialist will file an emergency petition when danger exists and emergency removal of the child is necessary.

F. When parents are willing to participate in an out-of-home Child Safety Plan, the PS Specialist must file a non-emergency petition that requires removal within 24 hours of the plan going into effect.

G. The plan will remain in effect up to 30 days and can be re-evaluated for an additional 30 days if needed.

H. Children taken into emergency custody will not have a Child Safety Plan. The out-of-home placement is the safety plan.

PROCEDURES:

A. Identifying Present Danger:

Present Danger is an immediate, significant and clearly observable family condition occurring in the present tense that is endangering or threatening to endanger a child and requires a prompt response from the agency.

During the initial assessment process and caseworker visits, the PS Specialist will assess for present danger at each contact with the:

1. alleged victim;

2. other children in the home; or

3. parents or caregivers.

B. If Present Danger Does Not Exist: If the PS Specialist does not identify present danger, the PS Specialist will document this assessment in ORCA.

C. Assessing for Impending Danger:

Impending danger refers to a family situation in which a child is not in present danger but is in a general state of danger because of what is happening within the child’s family. It refers to a state in which family conditions, behaviors, attitudes, motives, emotions, and situations can have a severe effect on a vulnerable child at any time.

D. Identifying Safety Threats:

1. The PS Specialist will apply the safety threshold criteria below to any suspected safety threat for determining whether or not there is a safety threat in the home:

a. Specific and Observable: the danger is real, it can be seen, it can be defined and explained, and it is evidenced in explicit and unambiguous ways;

b. Immediate: it is likely that a threat to the child’s safety will occur within the immediate or very near future;

c. Out-of-Control: the family condition is unrestrained, unmanaged, and without limits or monitoring. It is not subject to influence, manipulation, or internal power. It is out of the family’s control;

d. Severe Consequences: the threat can result in pain, serious injury, and disablement; can cause grave or debilitating physical health conditions, acute or grievous suffering, terror, impairment, or death; and

e. Vulnerable Child: a child who is dependent on others for protection, is susceptible to experience severe consequences based on the size of the child, mobility, social or emotional state. The child is generally under the age of six but also can include older children, especially those who are vulnerable to the authority and influence of adults within their family. The child has mental or physical disabilities, may be isolated from the community, or is in poor health or has limited physical capacity and robustness or is frail. A vulnerable child may also be a child who consciously or unknowingly provokes or stimulates threats and reactions by their parent or another adult caregiver.

2. The PS Specialist will analyze the information collected. All five components of the safety threshold criteria must be met to have an identified safety threat:

a. Safety Threat 1: no adult in the home is performing basic parenting duties and responsibilities that assure the child’s safety;

b. Safety Threat 2: one or both caregivers are violent and/or acting dangerously;

c. Safety Threat 3: one or both caregivers will/cannot control their behavior;

d. Safety Threat 4: one or both caregivers perceive a child in extremely negative terms;

e. Safety Threat 5: the family does not have or use resources necessary to assure a child’s safety;

f. Safety Threat 6: one or both caregivers are threatening to harm a child severely, or are fearful they will maltreat a child and/or request placement;

g. Safety Threat 7: one or both caregivers intend or intended to hurt a child seriously;

h. Safety Threat 8: one or both caregivers lack parenting knowledge, skill or motivation necessary to assure a child’s safety;

i. Safety Threat 9: a child has exceptional needs that affect his or her safety which caregivers are not meeting, cannot meet, or will not meet; and

Safety Threat 10: living arrangements seriously endanger the child’s physical health.

3. If the PS Specialist determines there are no safety threats in the home, the child is determined to be safe.

4. If the PS Specialist identifies one or more safety threats, the PS Specialist must determine whether there is a parent or adult caregiver in the home with sufficient protective factors which can and will protect the child from the threat of danger.

E. Caregiver Protective Factors: A person being protective of their child can be directly associated with protective factors. They are specific personal and parenting behavioral, cognitive, and emotional characteristics. Protective Factors can be observed, understood, and demonstrated as part of the way parent think, feels and acts that make them protective.

1. Analyzing the information collected during interviews and home visits the PS Specialist will determine whether or not there is a parent or adult caregiver residing in the home that has sufficient protective factors which can and will protect the vulnerable child from the impending danger safety threats. This includes: a. parental resilience;

b. social connections;

c. knowledge of parenting and child development;

d. concrete supports in times of need; and

e. social and emotional competence of children.

2. If the PS Specialist determines there are sufficient caregiver protective factors to ensure the safety threats can be controlled, the child is determined to be safe.

3. If the PS Specialist determines there are safety threats present, and there is one or more vulnerable child in the home, and the parent’s protective factors are insufficient to control the impending or present danger safety threats, the child is unsafe.

4. If the PS Specialist determines a child is unsafe, the PS Specialist must work in conjunction with the parent and other adult caregivers in the home to develop a plan to keep the child safe or take custody of the child.

F. If Present or Impending Danger Exists:

1. If the PS Specialist identifies present or impending danger, the PS Specialist must engage the family to the extent possible, and Tribal representative when applicable in developing a plan to keep the child safe.

Acceptable plans are:

a. To keep a child safe in their home when present danger exists, a parent and PS Specialist can identify a protective adult to come into the home to provide safety and supervision.

b. To keep a child safe in their home the following must be present: There is a parent or legal caregiver residing in the home;

2) The home is calm enough and predictable enough to allow for safety actions, tasks or services to come into the home;

3) The parents and other adult caregivers in the home are willing to allow and participate in an in-home plan;

4) There are resources within the family or community to perform the safety actions, tasks, or services necessary to manage the safety threats;

5) Any people participating in the safety management can be in the home safely and without disruption;

6) The in-home plan can be effective without the results of professional evaluations and monitoring; and

7) If any of the above criteria does not exist, an in-home plan is not appropriate for the family.

c. If a child cannot safely remain in their home, the child may stay at a friend’s or relative’s home. There must be a protective adult to provide for the safety and supervision of the child, and the parent must consent to an out-of-home Child Safety Plan. If implementing an out-of-home Child Safety Plan the PS Specialist must:

1) complete the Child Safety Plan (06-9775) with the parent or guardians;

2) file an emergency petition within 24 hours if present danger exists and emergency removal of the child is necessary;

3) file a non-emergency petition within 24 hours of an out-of-home Child Safety Plan going into effect; and

4) scan all safety plans into ORCA within 24 hours of implementation.

d. If a child cannot safely remain in their home, the child may have to be taken into custody and placed in out-of-home care. Out-of-home care is the last option and will be done in consultation with the PS Specialist IV.

2. The PS Specialist will ensure adult caregivers providing for the child’s safety and supervision as part of the plan is safe, responsible, and can offer protection. The PS Specialist will ensure this by: a. talking to the adults to determine their trustworthiness, reliability, commitment, alignment with the child, and availability; .

conducting a background check (CPS record check including ORCA, Prober, court view, state and national sex offender registry);

c. conducting a home visit if the child is to live in another adult’s home for an identified period; and

d. assessing the relationships between the adults providing for the child’s safety and the child’s parents, to ensure they can keep the child safe should one of the parents interrupt or violate the Child Safety Plan.

3. The PS Specialist will develop the most appropriate plan, in collaboration with the child (if age appropriate), the parents, and the identified family supports including the Tribe for ICWA eligible children.

4. The PS Specialist will determine the parent’s ability and willingness to cooperate with the Child Safety Plan. If the parent is unwilling or unable to follow or support the plan, the PS Specialist will consult with their PS Specialist IV regarding possible custody and out-of-home care options.

I know this is scary, overwhelming, and confusing. Let me show you what to do first to get your child back.

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It is important to know that when you make up your motion to dismiss, you will only be able to use opinions from the right court of appeals for YOUR area. There are 11 of them. If you do not know which district you would choose from CLICK HERE. Each have reconsidered court cases from the area that they represent.

For each subject you would like to consider in your motion, choose the correct reviewed case from the appeal court, US Law, or State law. Insert them into your motion as needed.

 

5. I was told by caseworkers name that if I did not tell her anything that CPS would take my child away.

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

Coercive or intimidating behavior supports a reasonable belief that compliance is compelledCassady v. Tackett, 938 F. 2d (6th Cir. 1991).

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. Florida v. Bostick, 501 US 429 (1991).  

Coercion can be mental as well as physical.Blackburn v. Alabama, 361 US (1960)

CPS Statutes

C.F.R. (Code of Federal Regulations)

10.  HH told me that if I did not answer a few questions, my child would be taken into DHS custody and placed in foster care. I was coerced into speaking with her and did so under duress. 

11.  The evidence used to gain entry did not satisfy the standard of probable cause.

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

ANY type of communication, which conveys the idea to the parent that they have no realistic alternative but to allow entry negates any claim that the entry was lawfully gained through the channel of consent.  “Consent to warrantless entry must be voluntary and not the result of duress or coercion. Lack of intelligence, not understanding the right not to consent, or trickery invalidate voluntary consent”.Schneckloth v. Bustamonte, 412 US 218 (1973). 

CPS Statutes

C.F.R. (Code of Federal Regulations)

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

Police officers and social workers are not immune from coercing or forcing entry into a person’s home without a search warrant.  Calabretta v. Floyd (9th Cir. 1999).

However, when determining whether the court has jurisdiction because of conditions and circumstances, the focus must be on the child’s current conditions and circumstances and not on some point in the past. Father caused injury to child, court took jurisdiction. Mother left father and improved her life. Court had no more jurisdiciton of child. State ex rel Juv. Dept. v. S. A., 230 Or App 346, 347, 214 P3d 851 (2009)

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

16.  There are two and only two recognized exceptions to the requirement of having a warrant for the conduct of a child abuse investigation:

a.) The adult in charge of the premises gives the social worker his/her free and voluntary consent to enter the home.

b.) The social worker possesses evidence that meets two standards:

(1) it satisfies the legal standard of establishing probable cause; and

(2) the evidence demonstrates that there are exigent circumstances relative to the health of the children.

1st Circuit

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8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

17.  CPS worker HH was in fact, acting under the authority or color of state law at the time this occurred in her official capacity as a social worker for Iowa DHS.

18.  Her execution of Iowa Department of Human Services’ “customs” and/or “policies” were the moving force behind her unconstitutional acts, and that personally, her individual unconstitutional acts violated my clearly established constitutional rights of which a reasonable official would have knownDavis v. Scherer (1984).

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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US Supreme Court

As the United States Supreme Court has explained: “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” ( Payton v. New York (1980) 445 U.S. 573, 590 [100 S.Ct. 1371, 1382, 63 L.Ed.2d 639].)

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

 

25.  There was no court order for this, nor did exigent circumstances exist as stated by Caseworkers Name in her initial assessment. 

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

Social workers and police cannot lawfully seize a child without a warrant or the existence of probable cause to believe the child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at caretaker’s home and found no evidence of abuse while there, seizure of the child was not objectively reasonable and violated the clearly established Fourth Amendment rights of the child. Wooley v. City of Baton Rouge, (5th Cir. 2000).

6th Circuit

7th Circuit

Child removals are “seizures” under the Fourth Amendment.  Seizure is unconstitutional without a court order or exigent circumstances. Brokaw v. Mercer County, (7th Cir. 2000)

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person would feel that he is not free to leave, and also either actually yields to a show of authority from police or social workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under arrest. California v. Hodari, 499 U.S. 621 (1991).

As the United States Supreme Court has explained: “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” ( Payton v. New York (1980) 445 U.S. 573, 590 [100 S.Ct. 1371, 1382, 63 L.Ed.2d 639].)

“Exigent circumstances” means “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” ( People v. Ramey, supra, at p. 276.)

CPS Statutes

C.F.R. (Code of Federal Regulations)

1st Circuit

2nd Circuit

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4th Circuit

Jordan by Jordan v. Jackson, 15 F. 3d 333, 342-346 (4th Cir. 1994) (” The State’s removal of a child from his parent’s home indisputably constitutes an interference with a liberty interest of the parents and thus triggers the procedural protections of the 14th amendment. . . . Forced separation of parent from child, even for a short time, represents a serious impingement on those rights.”)

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

Absent extraordinary circumstances, a parent has a liberty interest in familial association and privacy that cannot be violated without adequate pre-deprivation procedures. An ex parte hearing based on misrepresentation and omission does not constitute notice and an opportunity to be heard. Procurement of an order to seize a child through distortion, misrepresentation and/or omission is a violation of the Fourth Amendment. Parents may assert their children’s Fourth Amendment claim on behalf of their children as well as asserting their own Fourteenth Amendment claim. Malik v.Arapahoe Cty. Dept. of Social Services, (10th Cir. 1999)

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

38.  The CPS Assessment report falsely states that I told her I used meth once a week for the past several months.  I did NOT make this statement to anyone, and my UA on March 11, 2011 was negative.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

Court orders obtained based on knowingly false information violates Fourth Amendment.  Brokaw v. Mercer County, (7th Cir. 2000).

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

39.  On March 12, 2011, I signed over temporary legal guardianship of my child to Don and Sarah Boeckholt, for a period not to exceed 6 months.

40.  CPS removed my child after I informed Ms. Hewitt of this fact, which she failed to disclose to the court during the removal hearing. This is a lie of omission. A lie of omission is to remain silent when ethical behavior calls for one to speak up. A lie of omission is a method of deception and duplicity that uses the technique of simply remaining silent when speaking the truth would significantly alter the other person’s (the judge’s) capacity to make an informed decision.

1st Circuit

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3rd Circuit

 

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11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

23.  I was coerced into signing a “voluntary” Safety Plan.  The CPS worker, Caseworkers Name, threatened me that if I did not sign the “voluntary” service plan that my child would be TPR’ed. 

1st Circuit

2nd Circuit

 According to Amanda C., by and through Gary Richmond, natural parent and next friend, appellee, v. Kelly Case, appellant. N.W.2d  Filed May 23, 2008. No. S-06-1097 this is unauthorized practice of law and acting under the Color of Law.

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

1st Circuit

2nd Circuit

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5th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

27.  The assessment by Caseworker’s name does not specify what exigent circumstances existed or what immediate danger to life or health my child was in to justify an emergency situation. None of the following apply:

Put CPS rules of exigent circumstances here

C.F.R. (Code of Federal Regulations)

If anything, this case shows you that you must challenge the court or you will not get another chance.

SAMPLE:   I am therefore establishing ON THE RECORD that I strongly challenge that an emergency existed to remove my child, and most certainly do withdraw any “voluntary” agreements I was coerced into entering into.

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

In the opinion of Judge Stephen Limbaugh Jr. in the majority Opinion of the Supreme Court of Missouri, In the Interest of: P.L.O. and S.K.O., minor children. SC85120 (3/30/2004):  “The mother voluntarily consented to the court’s jurisdiction over her children, voluntarily transferred their custody to the division and never challenged the circumstances of their removal. Accordingly, she cannot now challenge whether an ’emergency’ existed to justify removal of her child under (the statute in question) and this court need not address such a challenge.”

C.F.R. (Code of Federal Regulations)

CPS Statutes

36.  The CPA falsely states that there are domestic violence issues in the home. My child herself states that Steve was never mean to us, and that she did not witness any violence.

37.  CPS worker caseworkers name states that my child witnessing domestic abuse constitutes as neglect/denial of critical care and is basis for her removal.  

1st Circuit

2nd Circuit

In a landmark class action suit in the U.S. District Court, Eastern District of New York, U.S. District Judge Jack Weistein ruled on Nicholson v. Williams, Case No.: 00-cv-2229, the suit challenged the practice of New York’s City’s Administration for Children’s Services of removing the children of battered mothers solely because the children saw their mothers being beaten by husbands or boyfriends.  Judge Weistein ruled that the practice is unconstitutional and he ordered it stopped.

3rd Circuit

The Department failed to show any evidence to support that father himself caused injuries.
The trial court found that something happened to the child over the weekend and that the injuries were consistent with “child physical abuse.” The Third District Court of Appeal (Third DCA) agreed with the trial court that the child was harmed pursuant to the statutory definition of harm but found the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict the injuries to the child. Specifically, the Third DCA pointed to a lack of any evidence to support that Father caused the injuries and noted that the child was exposed to a number of individuals over the weekend, including Father’s wife, her children and a number of other relatives. H.C. v. Department of Children and Family Services and Guardian ad Litem Program, 141 So.3d 243 (Fla. 3d DCA 2014)

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

1st Circuit

2nd Circuit

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5th Circuit

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US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

Judicial determinations that remaining in the home would be contrary to the welfare of the child and that reasonable efforts were made to prevent removal and to finalize the permanency plan in effect, as well as judicial determinations that reasonable efforts are not required, must be explicitly documented, made on a case-by-case basis, and stated in the court order.  A transcript of the court proceeding is the only other documentation that will be accepted to verify that these determinations have been made. Affidavits, nunc pro tunc orders, and references to state law are not acceptable.  45 C.F.R. §1356.21(d). The court, after hearing the evidence, must be satisfied that reasonable efforts . . . have been made.  Review and approval of the [state] agency’s report and recommendation alone are not sufficient to meet the requirements of the Act; the court must make a determination that the agency’s efforts were, in the judgment of the court, reasonable for preventing placement. With regard to emergency situations, if the agency’s judgment was that services could not have prevented removal of the child, the court at the time of the adjudicatory hearing must find that the lack of preventive efforts was reasonable.

43.  The reasonable efforts claimed to have been made by CPS were inconsistent in the various court documents, which was not questioned before making a determination.

44.  CPS was never required to provide specific and detailed documentation to prove that Reasonable Efforts were in fact made.  

 

 

1st Circuit

2nd Circuit

3rd Circuit

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5th Circuit

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8th Circuit

The juvenile court is required to make factual findings to support its conclusion that reasonable efforts have been made to avoid or eliminate the need for removal of the child from the home. It is not sufficient to merely conclude that reasonable efforts have been made without more. In Interest of B.L., 491 N.W.2d 789, 791 (Iowa App. 1992).

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

42 C.F.R. Section 1356.21(d) requires documentation of judicial determinations concerning both reasonable efforts and contrary to the welfare findings. They are to be explicitly documented on a case by case basis and so stated in the court order. Facts substantiating the legal conclusion must be stated in the order. Lack of compliance results in denial of federal funds for the child’s foster placement.

1st Circuit

2nd Circuit

3rd Circuit

Police officer and social worker may not conduct a warrantless search or seizure in a suspected child abuse case absent exigent circumstances.  Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonable necessary to alleviate the threat.  Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home. Goodv. Dauphin County Social Services (3rd Cir. 1989)

4th Circuit

5th Circuit

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7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

 

1st Circuit

2nd Circuit

3rd Circuit

A police officer and a social worker may not conduct a warrantless search or seizure in a suspected child abuse case absent exigent circumstances. Defendants must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonable necessary to alleviate the threat. Searches and seizures in investigation of a child neglect or child abuse case at a home are governed by the same principles as other searches and seizures at a home.  Good v. Dauphin County Social Services (3rd Cir. 1989).

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

Children may not be removed from their home by police officers or social workers without notice and a hearing unless the officials have a reasonable belief that the children were in imminent danger.  Ram v. Rubin, (9th Cir. 1997)

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

1st Circuit

2nd Circuit

3rd Circuit

The Department failed to show any evidence to support that father himself caused injuries.
The trial court found that something happened to the child over the weekend and that the injuries were consistent with “child physical abuse.” The Third District Court of Appeal (Third DCA) agreed with the trial court that the child was harmed pursuant to the statutory definition of harm but found the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict the injuries to the child. Specifically, the Third DCA pointed to a lack of any evidence to support that Father caused the injuries and noted that the child was exposed to a number of individuals over the weekend, including Father’s wife, her children and a number of other relatives. H.C. v. Department of Children and Family Services and Guardian ad Litem Program, 141 So.3d 243 (Fla. 3d DCA 2014)

4th Circuit

5th Circuit

Defendants could not lawfully seize child without a warrant or the existence of probable cause to believe child was in imminent danger of harm. Where police were not informed of any abuse of the child prior to arriving at caretaker’s home and found no evidence of abuse while there, seizure of the child was not objectively reasonable and violated the clearly established Fourth Amendment rights of the child. Wooley v. City of Baton Rouge, (5th Cir. 2000)

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

C.F.R. (Code of Federal Regulations)

 

 

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