How to write a Motion To Dismiss for CPS Juvenile Court In Arizona

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.

Arizona

 

CLICK HERE to get the Arizona Department of Child Safety: Policy and Procedure Manual

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: An act of domestic violence, as defined in § 13-3601(A), that was committed in the presence of a child will be considered an aggravating circumstance.

Consequences

An act of domestic violence committed in the presence of a child is considered an aggravating circumstance when determining a sentence and may result in a longer period of incarceration.

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

‘Abuse’ means:

  • Inflicting or allowing physical injury, impairment of bodily function, or disfigurement
  • Physical injury that results from permitting a child to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug
  • Unreasonable confinement of a child

‘Serious physical injury’ means an injury that is diagnosed by a medical doctor and that does any one or a combination of the following:

  • Creates a reasonable risk of death
  • Causes serious or permanent disfigurement
  • Causes significant physical pain
  • Causes seriousimpairment of health
  • Causes the loss or protracted impairment of an organ or limb
  • Is the result of sexual abuse, sexual conduct with a minor, sexual assault, molestation of a child, child prostitution, commercial sexual exploitation of a minor, sexual exploitation, or incest
Neglect

‘Neglect’ or ‘neglected’ means:

  • The inability or unwillingness of a parent, guardian, or custodian of a child to provide that child with supervision, food, clothing, shelter, or medical care, if that inability or unwillingness causes unreasonable risk of harm to the child’s health or welfare
  • Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purposes of manufacturing a dangerous drug
  • A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in § 13-3401 and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional
  • A diagnosis by a health professional of an infant under age 1 with clinical findings consistent with fetal alcohol syndrome or fetal alcohol effects

The determination by a health professional of prenatal exposure to a controlled substance shall be based on one or more of the following:

  • Clinical indicators in the prenatal period, including maternal and newborn presentation
  • History of substance use or abuse
  • Medical history
  • Results of a toxicology or other laboratory test on the mother or the newborn infant
Sexual Abuse/Exploitation

The term ‘abuse’ includes:

  • Inflicting or allowing sexual abuse
  • Sexual conduct with a minor
  • Sexual assault
  • Molestation of a child
  • Commercial sexual exploitation of a minor
  • Sexual exploitation of a minor
  • Incest
  • Child prostitution

The term ‘neglect’ includes:

  • Deliberate exposure of a child by a parent, guardian, or custodian to sexual conduct, as defined in § 13-3551; sexual contact; oral sexual contact; sexual intercourse; bestiality; or explicit sexual materials
  • Any of the following acts committed by the child’s parent, guardian, or custodian with reckless disregard as to whether the child is physically present:
    • Sexual contact
    • Oral sexual contact
    • Sexual intercourse
    • Bestiality
Emotional Abuse

The term ‘abuse’ includes inflicting or allowing another person to cause serious emotional damage to a child, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior, and such emotional damage is diagnosed by a medical doctor or psychologist, and the damage has been caused by the acts or omissions of an individual having care, custody, and control of a child.

‘Serious emotional injury’ means an injury that is diagnosed by a medical doctor or a psychologist and that does any one or a combination of the following:

  • Seriously impairs mental faculties
  • Causes serious anxiety, depression, withdrawal, or social dysfunction behavior to the extent that the child suffers dysfunction that requires treatment
  • Is the result of sexual abuse, sexual conduct with a minor, sexual assault, molestation of a child, child prostitution, commercial sexual exploitation of a minor, sexual exploitation of a minor, or incest
Abandonment

Citation: Rev. Stat. § 8-201
‘Abandoned’ means:

  • The failure of the parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision
  • That a parent has made only minimal efforts to support and communicate with the child

Failure to maintain a normal parental relationship with the child without just cause for a period of 6 months shall constitute prima facie evidence of abandonment.

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

CLICK HERE!

Standards for Reporting

Citation: Rev. Stat. § 13-3620
A report is required when a mandatory reporter reasonably believes that a child is or has been the victim of physical injury, abuse or child abuse, a reportable offense (including child pornography, child prostitution, or incest), or neglect that appears to have been inflicted on the child by other than accidental means or that is not explained by the available medical history as being accidental in nature, or the person reasonably believes there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant.

Persons Responsible for the Child

Responsible persons include:

  • The parent
  • A person having care, custody, and control of a child
Exceptions

A dependent child does not include a child who, in good faith, is being furnished Christian Science treatment by a duly accredited practitioner.

A child is not considered neglected if a parent’s inability to meet the needs of the child is due solely to the unavailability of reasonable services.

Definitions of Domestic Violence

To better understand this issue and to view it across States, download the PDF (533 KB) of this publication.

Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means attempting to cause or causing bodily injury to a family or household member or placing a family or household member by threat of force in fear of imminent physical harm.

Defined in Child Abuse Reporting and Child Protection Laws

In civil law: In this chapter, unless the context otherwise requires, ‘criminal conduct allegation’ means an allegation of conduct by a parent, guardian, or custodian of a child that, if true, would constitute any of the following:

  • A violation of § 13-3623 involving child abuse
  • A felony offense that constitutes domestic violence, as defined in § 13-3601
  • Sexual abuse or assault of a minor
  • Sexual conduct with a minor or molestation of a child
  • Any other act of abuse that is classified as a felony
  • An offense that constitutes domestic violence as defined in § 13-3601 and that involves a minor who is a victim of or was in imminent danger during the domestic violence

In criminal law: ‘Dangerous crime against children’ means any of the following that is committed against a minor who is under age 15:

  • Second-degree murder
  • Aggravated assault resulting in serious physical injury or involving the discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument
  • Sexual assault
  • Molestation of a child
  • Sexual conduct with a minor
  • Sexual exploitation or commercial sexual exploitation of a minor
  • Child abuse, as described in § 13-3623(A)(1)
  • Kidnapping
  • Sexual abuse
  • Taking or luring a child for the purpose of prostitution or child prostitution
  • Involving or using minors in drug offenses
  • Continuous sexual abuse of a child
  • Attempted first-degree murder
  • Sex trafficking
  • Manufacturing methamphetamine under circumstances that cause physical injury to a minor
  • Bestiality
  • Luring a minor for sexual exploitation
  • Aggravated luring a minor for sexual exploitation
  • Unlawful age misrepresentation
Defined in Criminal Laws

‘Domestic violence’ means any act that constitutes one of the following offenses:

  • A dangerous crime against children
  • Homicide, murder, or manslaughter
  • Endangerment
  • A threatening or intimidating act
  • Assault
  • Custodial interference
  • Unlawful imprisonment or kidnapping
  • Sexual assault
  • Criminal trespass
  • Criminal damage
  • Interfering with judicial proceedings
  • Disorderly conduct
  • Cruelty to animals
  • Intentionally preventing the use of a telephone by another person during an emergency
  • Use of an electronic communication to terrify, intimidate, threaten, harass, annoy, or offend
  • Harassment
  • Aggravated harassment
  • Stalking
  • Aggravated domestic violence
  • Surreptitious photographing, videotaping, or filming
  • Child or vulnerable adult abuse
  • Emotional abuse
Persons Included in the Definition

In criminal law: An act listed above is considered domestic violence if any of the following applies:

  • The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
  • The victim and the defendant have a child in common.
  • The victim or the defendant is pregnant by the other party.
  • The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother, or sister, or by marriage as a parent-in-law, grandparent-in-law, stepparent, stepgrandparent, stepchild, stepgrandchild, brother-in-law, or sister-in-law.
  • The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
  • The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
    • The type of relationship
    • The length of the relationship
    • The frequency of the interaction between the victim and the defendant
    • If the relationship has terminated, the length of time since the termination

In civil law: ‘Family or household member’ means a spouse, a former spouse, a parent, a child, or other adult person related by consanguinity or affinity who is residing or has resided in the household, or has a child or children in common with the person committing the domestic violence, and dependents of such persons.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

A person who furnishes a report, information, or records required or authorized under this section, or a person who participates in a judicial or administrative proceeding or investigation resulting from a report, information, or records required or authorized under this section, is immune from any civil or criminal liability by reason of that action, unless the person acted with malice or unless the person has been charged with or is suspected of abusing or neglecting the child or children in question.

Any person making a complaint, providing information, or otherwise participating in the program authorized by this article shall be immune from any civil or criminal liability by reason of such action, unless such person acted with malice or unless such person has been charged with or is suspected of abusing, abandoning, or neglecting the child or children in question.

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

CLICK HERE!

Making and Screening Reports of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (849 KB) of this publication.

Current Through February 2013

Individual Responsibility to Report

Any mandated reporter who reasonably believes that a minor is the victim of abuse or neglect shall report immediately to a peace officer or child protective services (CPS) in the Department of Economic Security. The report may be made by telephone or in person and must be followed by a written report within 72 hours.

Content of Reports

The reports shall contain:

  • The names and addresses of the minor and the minor’s parents or the person having custody
  • The minor’s age
  • The nature and extent of any injuries or neglect, including any evidence of previous injuries or neglect
  • Any other information that might be helpful
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

A health-care professional who, after a routine newborn physical assessment, believes that a newborn infant may be affected by the presence of alcohol or drugs shall immediately make a report to CPS.

Agency Receiving the Reports

When reports are received by a peace officer, the officer shall immediately notify CPS. When CPS receives a report, it shall immediately notify a peace officer in the appropriate jurisdiction.

In regulation: The department operates a Child Abuse Hotline to receive and screen incoming communications. If a person calls, visits, or writes a department office other than the Child Abuse Hotline to report child maltreatment, the department shall refer the person or written communication to the hotline.

Initial Screening Decisions

When the hotline receives a call, staff shall determine the type of alleged maltreatment, whether to classify the call as a report for investigation, and check the central registry for prior reports on the same persons.

If a call is screened in as a report, the hotline staff shall gather additional information using standardized questions, determine whether there are aggravating or mitigating factors, and assign each report a priority code. Staff shall enter the report into the central registry and immediately transmit the report to a local office.

Upon receipt of a report, a CPS unit supervisor shall assign the case for a field investigation, alternative investigation, or alternative response, such as referral to Family Builders.

Agency Conducting the Assessment/Investigation

To comply with the priority response time, entities other than CPS, such as law enforcement or emergency personnel, may initially respond to a report.

Assessment/Investigation Procedures

An alternative investigation consists of contact with a mandatory reporter who is currently involved with the family. The information will determine if the child and other children residing in the home are current victims of maltreatment or at risk of imminent harm. If results indicate that an alleged victim is at risk of harm, the case shall be immediately assigned for field investigation.

When conducting a field investigation, a CPS specialist shall determine:

  • The name, age, location, and current physical and mental condition of all children in the home of the alleged victim
  • Whether any child in the home has suffered maltreatment
  • Whether any child in the home is at risk of maltreatment in the future

A CPS specialist shall interview the alleged victim; the alleged victim’s caregiver who allegedly committed the abuse; other adults and children residing in the home; and other persons who may have relevant information, including the reporting source, medical personnel, relatives, neighbors, and school personnel. The CPS specialist also shall review available documentation including medical and psychiatric reports, police reports, school records, and prior CPS files or consult with law enforcement.

A CPS specialist may interview a child without prior parental consent under § 8-802(C)(2). A CPS specialist may exclude the alleged abuser from participating in an interview with the alleged victim, the alleged victim’s siblings, or other children residing in the alleged victim’s household.

Before interviewing a caregiver, a CPS specialist shall:

  • Orally inform the caregiver of the rights and duties under § 8-803(B)
  • Give the caregiver a written statement summarizing the same information
  • Ask the caregiver to sign a written acknowledgment of receipt of the information
Timeframes for Completing Investigations

Priority codes and initial response times are:

  • Priority 1 High Risk:
    • Standard Response: 2 hours
    • Mitigated Response: 24 hours
  • Priority 2 Moderate Risk:
    • Standard Response: 48 hours
    • Aggravated Response: 24 hours
    • Mitigated Response: 72 hours
  • Priority 3 Low Risk:
    • Standard Response: 72 hours
    • Aggravated Response: 48 hours
    • Mitigated Response: 72 hours excluding weekends and Arizona State holidays
  • Priority 4 Potential Risk:
    • Standard Response: 7 days
    • Aggravated Response: 72 hours excluding weekends and Arizona State holidays
Classification of Reports

After completing an investigation and considering the information listed in R6-5-5509, a CPS specialist shall unsubstantiate the allegations or make a proposed finding that the allegation is substantiated based on whether the CPS specialist finds probable cause to believe maltreatment occurred.

Parental Drug Use as Child Abuse

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Current Through April 2015

For the purposes of subsections A and B of this section, the terms ‘endangered’ and ‘abuse’ include, but are not limited to, circumstances in which a child or vulnerable adult is permitted to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug in violation of § 13-3407(A)(3) or (4).

Notwithstanding any other provision of this section, a violation committed under circumstances described in this subsection does not require that a person have care or custody of the child or vulnerable adult.

The term ‘abuse’ includes physical injury that results from permitting a child to enter or remain in any structure or vehicle in which volatile, toxic, or flammable chemicals are found or equipment is possessed by any person for the purpose of manufacturing a dangerous drug as defined in § 13-3401.

‘Neglect’ or ‘neglected’ means:

  • Permitting a child to enter or remain in any structure or vehicle in which volatile, toxic or flammable chemicals are found or equipment is possessed by any person for the purposes of manufacturing a dangerous drug as defined in § 13-3401
  • A determination by a health professional that a newborn infant was exposed prenatally to a drug or substance listed in § 13-3401, and that this exposure was not the result of a medical treatment administered to the mother or the newborn infant by a health professional. This subdivision does not expand a health professional’s duty to report neglect based on prenatal exposure to a drug or substance listed in § 13-3401 beyond the requirements prescribed pursuant to § 13-3620(E). The determination by the health professional shall be based on one or more of the following:
    • Clinical indicators in the prenatal period including maternal and newborn presentation
    • History of substance use or abuse
    • Medical history
    • The results of a toxicology or other laboratory test on the mother or the newborn infant
    • A diagnosis by a health professional of an infant under age 1 with clinical findings consistent with fetal alcohol syndrome or fetal alcohol effects

A health-care professional who, after a routine newborn physical assessment of a newborn infant’s health status or following notification of positive toxicology screens of a newborn infant, reasonably believes that the newborn infant may be affected by the presence of alcohol or a drug listed in § 13-3401 shall immediately report this information, or cause a report to be made, to the Department of Child Safety. For the purposes of this subsection, ‘newborn infant’ means a newborn infant who is under 30 days of age.

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

CLICK HERE!

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

In all juvenile court proceedings in which the dependency petition includes an allegation that the juvenile is abused or neglected, the court shall appoint a guardian ad litem (GAL) to protect the juvenile’s best interests. This guardian may be an attorney or a court-appointed special advocate (CASA).

The Use of Court-Appointed Special Advocates (CASAs)

The CASA program is established in the Administrative Office of the Supreme Court. The program shall establish local special advocate programs in each county.

The Supreme Court shall adopt rules prescribing the establishment of local programs and the minimum performance standards of these programs.

The CASA fund consists of moneys received pursuant to § 5-568 [from unclaimed prizes from the State lottery]. The fund is subject to annual legislative appropriation. Moneys appropriated by the legislature from the CASA fund for the CASA program shall be used by the Supreme Court to operate, improve, maintain, and enhance the program.

Qualifications/Training

This issue is not addressed in the statutes reviewed.

Specific Duties

The GAL or attorney for a juvenile shall meet with the juvenile before the preliminary protective hearing, if possible, or within 14 days after the preliminary protective hearing. The GAL or attorney for the juvenile also shall meet with the juvenile before all substantive hearings. Upon a showing of extraordinary circumstances, the judge may modify this requirement for any substantive hearing.

How the Representative Is Compensated

This issue is not addressed in the statutes reviewed.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Every child and family receiving ongoing services from the Department of Children, Youth, and Families shall have an individualized family-centered case plan, consistent with the requirements of Federal and State law. The department shall conduct a case plan staffing within 60 days of case opening for all cases open for more than 60 days or within 10 working days of a child’s placement into voluntary foster care.

Who May Participate in the Case Planning Process

The department shall encourage the participation of parents, children, out-of-home care providers, and when appropriate, extended family members in the case planning process.

All members of the service team shall be invited to participate in the case plan staffing. Parents, children age 12 or older, and out-of-home care providers shall be members of the service team. To every extent possible, and when appropriate, extended family members may also participate as members of the service team.

Contents of a Case Plan

The family-centered case plan shall be a discrete document that includes the following components:

  • The child’s safety plan, specifying ongoing actions that will be taken to ensure the child’s continued safety at home and demonstrating that the child’s health and safety are of paramount concern
  • The permanency goal for the child and expected date of achievement
  • The family intervention plan, specifying for all parents (whose parental rights have not been terminated) and guardians the kinds of services and supports that will be offered to the family in order to achieve the case plan permanency goal
  • The out-of-home care plan, specifying for every child in out-of-home care the most recent information available regarding:
    • The child’s special needs
    • The name and address of the child’s school
    • The child’s educational status
    • How the placement type meets those needs
    • Services provided to the child
    • Services provided to the caregiver to help meet the child’s needs
    • Actions the CPS Specialist will take to ensure safety in the out-of-home setting
    • When applicable, tasks and services to achieve a concurrent permanency goal or a permanency goal other than family reunification
    • For any child placed substantially distant from the parent’s home or out-of-State, the reason the placement is in the best interests of the child
  • The health-care plan, specifying for each child the most recent information available regarding the child’s health status
  • The contact and visitation plan, specifying for every child in out-of-home care the plan for frequent and consistent visitation between the child and the child’s parents, siblings, family members, other relatives, friends, and any former (family) resource family, especially those with whom the child has developed a strong attachment
  • Specific documentation of how the family and other team members actively participated in the development of the plan

Permanency goal options include reunification, adoption, legal guardianship, and another planned living arrangement. A concurrent permanency plan is included for children who have been assessed as unlikely to reunite with their parent within 12 months of the child’s initial removal.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

After the disposition hearing, the court shall hold periodic review hearings at least once every 6 months as required by Federal law.

The court shall hold a permanency hearing to determine the future permanent legal status of the child:

  • Within 30 days after the disposition hearing if the court does not order reunification services
  • Within 6 months after a child who is under age 3 is removed from the child’s home
  • In all other cases, within 12 months after the child is removed from the child’s home

If the court determines that the child should remain in out-of-home placement longer than 18 months from the date of the permanency order, the court shall conduct a review of the order at least once each year. After reviewing the order, the court may reaffirm the order or direct other disposition of the child.

Persons Entitled to Attend Hearings

The following persons shall be provided notice of the review and the right to participate in the proceeding:

  • The agency charged with the child’s care and custody
  • Any foster parents in whose home the child resided within the last 6 months
  • A shelter care facility or receiving foster home where the child resides or has resided within the last 6 months for more than 30 days
  • The child’s parent or guardian, unless the parental rights of that parent or guardian have been terminated
  • The child, if age 12 or older
  • The child’s relative, if the relative files a written notice of right of participation with the court
  • A person permitted by the court to intervene as a party in the dependency proceeding
  • A physical custodian of the child within the preceding 6 months
  • Any person who has filed a petition to adopt or who has physical custody pursuant to a foster-adoptive placement
  • Any other person as the court may direct
Determinations Made at Hearings

In reviewing the status of the child, the court shall consider the health and safety of the child as a paramount concern and the following criteria:

  • The goals of the placement and the appropriateness of the case plan
  • The services that have been offered to reunite the family
  • If returning the child home is not likely, the efforts that have been or should be made to evaluate or plan for other permanent placement plans
  • The efforts that have been made or should be made to place the child with the child’s siblings or to provide frequent visitation or contact when placement with siblings has not been possible

The court shall review the permanent plan that has been established for the child. In reviewing the status of the child, the court, insofar as possible, shall seek to reunite the family. If the court does not order reunification of the family, the court shall order a plan of adoption or another permanent plan that is in the child’s best interests and that takes into consideration the placement of the child with siblings or that provides for frequent visitation or contact among siblings, unless the court determines that either the placement with the siblings or the visitation or contact would be contrary to the child’s or a sibling’s safety or well-being.

At the permanency hearing, the court shall determine:

  • Whether termination of parental rights, adoption, permanent guardianship, or some other permanent legal status is the most appropriate plan for the child
  • Whether reasonable efforts have been made to finalize the permanency plan in effect
  • What efforts have been made in the permanency plan to place the child with the child’s siblings or to provide frequent visitation or contact, unless the court had already determined that placement with all or any siblings or visitation or contact is not possible or would be contrary to the child’s or a sibling’s safety or well-being
Permanency Options

The court may order any of the following:

  • Return to the child’s parent
  • Placement with a grandparent or other member of the child’s extended family, including a person who has a significant relationship with the child, unless the court determines that such placement is not in the child’s best interests
  • Adoption
  • Placement with a suitable institution, association, or school
  • Independent living
  • Placement with any adult as a permanent guardian

For the purposes of this subsection, a prospective permanent placement includes:

  • A grandparent or another member of the child’s extended family including a person who has a significant relationship with the child
  • A person or persons with an expressed interest in being the permanent placement for the child in a certified adoptive home where the child resides, a home that is a permanent placement for a sibling of the child, or a licensed family foster home where the child resides

Determining the Best Interests of the Child

To better understand this issue and to view it across States, download the PDF (397 KB) of this publication.

Current Through March 2016

In reviewing the status of the child and in determining its order of disposition, the court shall consider the health and safety of the child as a paramount concern.

At any periodic review hearing, the court shall consider the health and safety of the child as a paramount concern.

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Grounds for Involuntary Termination of Parental Rights

To better understand this issue and to view it across States, download the PDF (652 KB) of this publication.

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Grounds to terminate the parent-child relationship shall include any of the following, with due consideration for the best interests of the child:

  • The parent has abandoned the child.
  • The parent has neglected or willfully abused a child.
  • The parent is unable to discharge parental responsibilities because of mental illness, mental deficiency, or a history of chronic abuse of dangerous drugs or alcohol, and there are reasonable grounds to believe that the condition will continue for a prolonged period.
  • The parent has been convicted of a felony of such nature as to prove the unfitness of that parent, including murder or manslaughter of another child of the parent, or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.
  • The potential father failed to file a paternity action within 30 days of completion of service of notice as prescribed in § 8-106(G).
  • The putative father failed to file a notice of claim of paternity.
  • The parents have relinquished their rights to a child to an agency or have consented to the adoption.
  • The identity of the parent is unknown and continues to be unknown following 3 months of diligent efforts to identify and locate the parent.
  • The parent has had parental rights to another child terminated within the preceding 2 years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.

The following may also be grounds for termination of parental rights:

  • The child is being cared for in an out-of-home placement, the agency responsible for the child’s care has made a diligent effort to provide appropriate reunification services, and one of the following circumstances exists:
    • The child has been in an out-of-home placement for a cumulative total period of 9 months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement.
    • The child who is under age 3 has been in an out-of-home placement for a cumulative total period of 6 months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services offered by the department.
    • The child has been in an out-of-home placement for a cumulative total period of 15 months, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and control in the near future.
  • All of the following are true:
    • The child was cared for in an out-of-home placement pursuant to court order.
    • The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services.
    • The child was returned to the legal custody of the parent from whom the child had been removed.
    • Within 18 months after the child was returned, the child was removed from that parent’s legal custody, the child is being cared for in an out-of-home placement, and the parent is currently unable to discharge parental responsibilities.

The failure of an alleged parent who is not the child’s legal parent to take a test requested by the department or ordered by the court to determine if the person is the child’s natural parent is prima facie evidence of abandonment unless good cause is shown by the alleged parent for that failure.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

To better understand this issue and to view it across States, download the PDF (556 KB) of this publication.

Current Through February 2013

Infant’s Age

A newborn infant may be relinquished. The term ‘newborn infant’ means an infant who is 72 hours old or younger.

Who May Relinquish the Infant

The child may be relinquished by the parent or an agent of the parent.

Who May Receive the Infant

The child may be left with a designated safe haven provider. A safe haven provider includes any of the following:

  • A firefighter who is on duty
  • An emergency medical technician who is on duty
  • A medical staff member at a general hospital or a rural general hospital
  • A staff member or volunteer at any of the following organizations that posts a public notice that it is willing to accept a newborn infant:
    • A licensed private child welfare agency
    • A licensed adoption agency
    • A church
Responsibilities of the Safe Haven Provider

If a parent or an agent of a parent voluntarily delivers the parent’s newborn infant to a safe haven provider, the safe haven provider shall take custody of the newborn infant if both of the following are true:

  • The parent did not express an intent to return for the newborn infant.
  • The safe haven provider reasonably believes that the child is a newborn infant.

The safe haven provider shall immediately transport the infant to a hospital for a physical examination.

If the infant is left with a private child welfare or adoption agency and the agency has the ability to place the infant for adoption, the agency shall inform child protective services that it will take custody of the infant within 24 hours. If the agency cannot place the infant for adoption, it shall inform child protective services that it will not take custody of the infant.

If an infant is left with a church and the church is affiliated with a private adoption agency, the provider must immediately inform child protective services that an infant has been left at the church, the location of the hospital where the church transported the infant, and whether a private adoption agency will take custody of the infant.

If the church is not affiliated with a private adoption agency or the agency cannot place the infant for adoption, child protective services shall contact the next private adoption agency on its rotating list of agencies until it contacts an agency that agrees to take custody of the infant. The adoption agency must take custody of the infant from the hospital within 24 hours.

If an infant is left with a firefighter, emergency medical technician, or a hospital staff member, the safe haven provider shall immediately contact child protective services to inform it that an infant has been left and of the location of the hospital where the safe haven provider transported the infant.

Immunity for the Provider

A safe haven provider who receives a newborn infant is not liable for any civil or other damages for any act or omission by the safe haven provider in maintaining custody of the newborn infant if the safe haven provider acts in good faith without gross negligence.

Protection for Relinquishing Parent

A person is not guilty of abuse of a child solely for leaving an unharmed newborn infant with a safe haven provider.

A parent or agent of a parent who leaves a newborn infant with a safe haven provider may remain anonymous, and the safe haven provider shall not require the parent or agent to answer any questions.

Effect on Parental Rights

This issue is not addressed in the statutes reviewed.

Kinship Guardianship as a Permanency Option

To better understand this issue and to view it across States, download the PDF (1337 KB) of this publication.

Current Through December 2014

Definitions

The term ‘relative’ means a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle, or first cousin.

Purpose of Guardianship

The court may establish a permanent guardianship between a child and the guardian if the prospective guardianship is in the child’s best interests and all of the following apply:

  • The child has been adjudicated a dependent child.
  • The child has been in the custody of the prospective permanent guardian for at least 9 months as a dependent child. The court may waive this requirement for good cause.
  • If the child is in the custody of the Department of Child Safety or agency, the department or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive. The court may waive this requirement if it finds that reunification efforts are not required by law or if reunification of the parent and child is not in the child’s best interests because the parent is unwilling or unable to properly care for the child.
  • The likelihood that the child would be adopted is remote, or termination of parental rights would not be in the child’s best interests.
A Guardian’s Rights and Responsibilities

Unless otherwise set forth in the final order of permanent guardianship, a permanent guardian is vested with all of the rights and responsibilities set forth in § 14-5209 relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities of the birth or adoptive parent, if any, that are set forth in the decree of permanent guardianship.

A guardian of a minor has the powers and responsibilities of a custodial parent regarding the ward’s support, care, and education. A guardian is not personally liable for the ward’s expenses and is not liable to third persons by reason of the relationship for acts of the ward.

A guardian may:

  • Receive monies payable for the support of the ward under the terms of any statutory benefit, insurance system, private contract, devise, trust, conservatorship, or custodianship
  • Take custody of the ward and establish the ward’s place of residence in or outside this State, if consistent with the terms of an order of a court of competent jurisdiction relating to the detention or commitment of the ward
  • Facilitate the ward’s education, social, or other activities, and consent to medical or other professional care, treatment, or advice for the ward
  • Consent to the marriage or adoption of the ward
  • If reasonable, delegate to the ward certain responsibilities for decisions affecting the ward’s well-being
Qualifying the Guardian

The court may consider any adult, including a relative or foster parent, as a permanent guardian. The court shall appoint a person nominated by the child if the child is at least age 12, unless the court finds that the appointment would not be in the child’s best interests. The court shall consider the child’s objection to the appointment of the person nominated as permanent guardian. In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional needs of the child.

Before a final hearing, the department, the agency, or a person designated as an officer of the court shall conduct an investigation addressing the factors set forth in § 8-871, whether the prospective permanent guardian or guardians are fit and proper persons to become permanent guardians, and whether the best interests of the child would be served by granting the permanent guardianship. The findings of this investigation shall be set forth in a written report provided to the court and all parties before the hearing. The court may require additional investigation if it finds that the welfare of the child will be served or if additional information is necessary to make an appropriate decision regarding the permanent guardianship. The court may charge a reasonable fee for this investigation pursuant to § 8-133, if performed by an officer of the court.

In policy: The department shall consider recommending a permanency plan of guardianship when the prospective permanent guardian has made a commitment to provide care and support to the child, and guardianship is in the child’s best interests.

The department must complete a home study of the prospective guardians, including fingerprinting, State and Federal criminal history records clearances, and a Department of Child Safety (DCS) records search.

Procedures for Establishing Guardianship

Any party to a dependency proceeding may file a motion for permanent guardianship. The person who files the motion shall serve notice of the hearing and a copy of the motion on all parties, including any person who has filed a petition to adopt or who has physical custody pursuant to a court order in a foster-adoptive placement. The person who files the motion shall provide a copy of the notice of hearing to the following persons:

  • The child’s current physical custodian
  • Any foster parent with whom the child has resided within the 6 months before the date of the hearing
  • The prospective guardian if the guardian is not the current physical custodian
  • Any other person the court orders to be provided notice

The person who files the motion has the burden of proof by clear and convincing evidence. In any proceeding involving a child who is subject to the Federal Indian Child Welfare Act, the person who files the motion has the burden of proof by beyond a reasonable doubt.

On the entry of the order establishing a permanent guardianship, the dependency action shall be dismissed. If the child was in the legal custody of the department during the dependency, the court may order the department to conduct the investigation and prepare the report for the first report and review hearing. The court shall retain jurisdiction to enforce its final order of permanent guardianship. The court shall require a report and review hearing to be held within 1 year following the entry of the final order and may set such other and further proceedings as may be in the best interests of the child. Before a report and review hearing, the court may require an investigation to be conducted of the facts and circumstances surrounding the welfare and best interests of the child and a written report to be filed with the court.

Contents of a Guardianship Order

A court order vesting permanent guardianship with an individual divests the birth or adoptive parent of legal custody of or guardianship for the child but does not terminate the parent’s rights. A court order for permanent guardianship does not affect the child’s inheritance rights from and through the child’s birth or adoptive parents.

On finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings, or other relatives of the child if this order would be in the child’s best interests. The order also may include any other provision that is necessary to rehabilitate the child or to provide for the child’s continuing safety and well-being. The court may order a parent to contribute to the support of the child to the extent it finds the parent is able.

Modification/Revocation of Guardianship

The child, a parent of the child, or any party to the dependency proceeding may file a petition for the revocation of an order granting permanent guardianship if there is a significant change of circumstances, including:

  • The child’s parent is able and willing to properly care for the child.
  • The child’s permanent guardian is unable to properly care for the child.

The court shall appoint a guardian ad litem for the child in any proceeding for the revocation of permanent guardianship.

The court may revoke the order granting permanent guardianship if the party petitioning for revocation proves a change of circumstances by clear and convincing evidence and the revocation is in the child’s best interests.

In the interest of developing self-reliance on the part of a ward or for other good cause, the court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the minor or other interested person, may create a limited guardianship by limiting the powers of a guardian otherwise conferred by this section. Any limitation on the statutory power of a guardian of a minor must be endorsed on the guardian’s letters.

Eligibility for Guardianship Subsidy

The department may provide a subsidy to guardian on behalf of a child subject to the requirements of this section. A guardian is not eligible for a subsidy until he or she demonstrates that the child or a responsible person on behalf of the child has applied for all benefits to which the child is entitled from other State or Federal programs.

The department shall discontinue a subsidy if any of the following occurs:

  • The permanent guardianship terminates.
  • The child dies or does not reside with the permanent guardian.
  • The child reaches age 18, except that the department may continue the subsidy until the child’s 22nd birthday if the child is enrolled in and regularly attending school and has not received a high school diploma or certificate of equivalency.
  • The guardian fails to comply with any requirement in this section.

In policy: The guardianship subsidy program shall support permanent placements for children who cannot return home and for whom adoption is not an option. Guardianship subsidy is intended to be only a partial reimbursement for expenses involved in the care of the child.

A permanent guardian is eligible for guardianship subsidy if he or she has a permanent guardianship granted pursuant to § 8-871, on or after August 6, 1999, and has applied for other State and Federal benefits on behalf of the child.

Links to Agency Policies

Division of Child Safety and Family Services, Policy & Procedure Manual, see Ch 5, § 28, et seq., Permanent Guardianship

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Placement of Children With Relatives

To better understand this issue and to view it across States, download the PDF (627 KB) of this publication.

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The Department of Economic Security may place a child with a parent or relative. The term ‘relative’ means a grandparent, great-grandparent, brother or sister of whole-blood or half-blood, aunt, uncle, or first cousin.

The department shall establish kinship foster care services for a child who has been removed from the child’s home and is in the custody of the department. The program shall promote the placement of the child with the child’s relative for kinship foster care.

Requirements for Placement with Relatives

A kinship foster care parent applicant who is not a licensed foster care parent shall be at least age 18. The applicant and each member of the applicant’s household who is at least age 18 shall submit a full set of fingerprints to the department for the purpose of obtaining a State and Federal criminal records check pursuant to § 41-1750 and Public Law 92-544. The Department of Public Safety may exchange this fingerprint data with the Federal Bureau of Investigation.

The Department of Economic Security shall determine if the applicant is able to meet the child’s health and safety needs by conducting one or more home visits and interviewing the applicant.

The department may interview other household members, review the applicant’s personal and professional references, and conduct Child Protective Services central registry checks.

A kinship foster care parent may be eligible to receive the following financial services for the child:

  • Full foster care benefits, including payment if the kinship foster care parent becomes a licensed foster care home
  • Temporary Assistance for Needy Families cash assistance payments for a child only for case and supplemental financial support

The department shall provide nonfinancial services for a kinship foster care parent through existing means or referral. Nonfinancial services may include:

  • Family assessment and case management
  • Child care
  • Housing search and relocation
  • Parenting skills training
  • Supportive intervention and guidance counseling
  • Transportation and emergency services
  • Parent aid and respite services
  • Additional services that the department determines are necessary to meet the needs of the child and family
Requirements for Placement of Siblings

If a child has been removed from the child’s home and placed in out-of-home placement, guardianship, or adoptive placement, the department shall make reasonable efforts to place that child with the child’s siblings or, if that is not possible, to maintain frequent visits or other ongoing contact between the child and the child’s siblings, unless a court determines that either the placement or the visits or contact would be contrary to the child’s or a sibling’s safety or well-being.

Relatives Who May Adopt

A relative who may adopt the child includes an uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole-blood or half-blood or by marriage.

Requirements for Adoption by Relatives

Before any prospective adoptive parent may petition to adopt a child the person shall be certified by the court as acceptable to adopt children. A certificate shall be issued only after an investigation conducted by an officer of the court, by an agency, or by the division. This section does not apply if the prospective adoptive parent is the spouse of the birth or legal parent of the child to be adopted or is an uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole-blood or half-blood or by marriage or adoption.

A person who is not currently certified as acceptable to adopt but who has custody of a child who the person intends to adopt shall petition the court for an order permitting that person to keep custody of the child pending certification. If the court permits the person to continue to have custody of the child, the court shall order the investigation to continue for preadoption certification and report as required by § 8-105.

A custody petition or hearing is not required if the person who intends to adopt the child is:

  • The spouse of a birth or legal parent of the child
  • An uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole-blood or half-blood or by marriage

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

To better understand this issue and to view it across States, download the PDF (539 KB) of this publication.

Current Through March 2016

What Are Reasonable Efforts

‘In-home intervention’ means a program of services provided pursuant to § 8-891 while the child is still in the custody of the parent, guardian, or custodian.

After a dependency petition is filed, the court may order in-home intervention if all of the following are true:

  • The child has not been removed from the home.
  • In-home intervention appears likely to resolve the risk issues described below.
  • The parent, guardian, or custodian agrees to a case plan and participation in services.
  • One of the following conditions exists:
    • The child is at risk of harm due to the inability or unwillingness of the parent, guardian, or custodian to provide food, clothing, shelter, or medical care.
    • The parent, guardian, or custodian is unable to provide proper care, control, and supervision of the child.

The in-home intervention order may include a training or treatment plan for the parent, guardian, or custodian and the child. The in-home intervention shall include a specific time for completion that shall not exceed 1 year without review and approval by the court.

The term ‘protective services’ is defined as a specialized child welfare program that is administered by the department to investigate allegations and seek to prevent, intervene in, and treat abuse and neglect to promote the well-being of the child in a permanent home and to coordinate services to strengthen the family.

When Reasonable Efforts Are Required

If the child has been removed from the home, the court shall order the Department of Child Safety to make reasonable efforts to provide services to the child and the child’s family.

When Reasonable Efforts Are NOT Required

Reunification services are not required when one or more of the following aggravating circumstances exist:

  • A diligent search has failed to locate the parent, or the parent has expressed no interest in reunifying the child, for at least 3 months.
  • The parent is suffering from a mental illness or deficiency of such magnitude that the parent is incapable of benefitting from reunification services, or that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within 12 months.
  • The child previously has been removed from the home due to physical or sexual abuse, and, after the child was returned to the parent, the child was removed again within 18 months due to additional abuse.
  • The parent committed a dangerous crime against a child, caused a child to suffer serious physical or emotional injury, or knew or reasonably should have known that another person committed a dangerous crime against children or caused a child to suffer serious physical or emotional injury.
  • The parent’s rights to another child have been terminated, the parent has not successfully addressed the issues that led to the termination, and the parent is unable to fulfill parental responsibilities.
  • After a finding that a child is dependent, all of the following are true:
    • A child has been removed from the parent on at least two previous occasions.
    • Reunification services were offered or provided to the parent.
    • The parent is unable to fulfill parental responsibilities.
  • The parent has been convicted of a dangerous crime against a child; murder or manslaughter of a child; sexual abuse, sexual assault, or molestation of a child; sexual conduct with a minor; commercial sexual exploitation of a minor; or luring a minor for sexual exploitation.
  • The parent of a child has been convicted of aiding or abetting, attempting, conspiring, or soliciting to commit any of the crimes listed above.

Standby Guardianship

To better understand this issue and to view it across States, download the PDF (354 KB) of this publication.

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.

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

CLICK HERE!

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

CLICK HERE!

 

CPS Statutes & Rules

CLICK HERE to get the Arizona Department of Child Safety: Policy and Procedure Manual

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

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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

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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

2nd Circuit

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)

 

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

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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

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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

3rd Circuit

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

2nd Circuit

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)

 

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

10th Circuit

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

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)

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

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

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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