How to write a Motion To Dismiss for CPS, DCFS Juvenile Court In Arkansas

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.

Arkansas

 

Their main website

Division of Children and Family Services Policy & Procedure Manual

Child Maltreatment Assessment Protocol

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: ‘In the presence of a child’ means in the physical presence of a child or knowing or having reason to know that a child is present and may see or hear an act.

Consequences

Any person who commits a felony offense involving homicide, assault, battery, domestic battering, or assault on a family member or household member may be subject to an enhanced sentence of an additional term of imprisonment of not less than 1 year and not greater than 10 years if the offense is committed in the presence of a child. The enhanced portion of the sentence is consecutive to any other sentence imposed.

Any person who commits the offense of aggravated cruelty to a dog, cat, or horse may be subject to an enhanced sentence of an additional term of imprisonment not to exceed 5 years if the offense is committed in the presence of a child.

Any person convicted under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means any of the following acts or omissions:

  • Extreme or repeated cruelty to a child
  • Engaging in conduct creating a realistic and serious threat of death, permanent or temporary disfigurement, or impairment of any bodily organ
  • Any injury that is inconsistent with the history given
  • Any non-accidental physical injury
  • Any of the following intentional or knowing acts:
    • Throwing, kicking, burning, biting, or cutting a child
    • Striking a child with a closed fist
    • Shaking a child
    • Striking a child on the face or head
  • Any of the following acts, with or without physical injury:
    • Striking a child age 6 or younger on the face or head
    • Shaking a child age 3 or younger
    • Interfering with a child’s breathing
    • Pinching, biting, or striking a child in the genital area
    • Tying a child to a fixed or heavy object or binding or tying a child’s limbs together
    • Giving a child or permitting a child to consume or inhale a poisonous or noxious substance not prescribed by a physician that has the capacity to interfere with normal physiological functions
    • Giving a child or permitting a child to consume or inhale a substance not prescribed by a physician that has the capacity to alter the mood of the child, including, but not limited to, marijuana, alcohol, a narcotic, or an over-the-counter drug if a person purposely administers an overdose to a child
    • Exposing a child to a chemical that has the capacity to interfere with normal physiological functions, including, but not limited to, a chemical used or generated during the manufacture of methamphetamine
    • Subjecting a child to Munchausen syndrome by proxy or a factitious illness by proxy if the incident is confirmed by medical personnel
Neglect

‘Neglect’ means those acts or omissions that constitute:

  • Failure or refusal to prevent the abuse of the child when the person knows or should know the child is or has been abused
  • Failure or refusal to provide the food, clothing, shelter, or medical treatment necessary for the child’s well-being
  • Failure to take reasonable action to protect the child from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of the condition was known or should have been known
  • Failure or inability to provide for the essential and necessary physical, mental, or emotional needs of the child, including the failure to provide a shelter that does not pose a risk to the health or safety of the child
  • Failure to provide for the child’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary care
  • Failure, although able, to assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility
  • Failure to appropriately supervise the child that results in the child’s being left alone at an inappropriate age or in inappropriate circumstances creating a dangerous situation or a situation that puts the child at risk of harm
  • Failure to ensure a child between age 6 and 17 is enrolled in school or is being legally home schooled, or the child is habitually absent from school as a result of an act or omission by the child’s parent

Neglect also shall include:

  • Causing a child to be born with an illegal substance present in the child’s bodily fluids or bodily substances as a result of the pregnant mother’s knowingly using an illegal substance before the child’s birth
  • The presence of an illegal substance at the time of the birth of a child in the mother’s bodily fluids or bodily substances as a result of the pregnant mother’s knowingly using an illegal substance before the child’s birth
Sexual Abuse/Exploitation

‘Sexual abuse’ means:

  • By a person age 14 or older to a person younger than age 18:
    • Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion
    • Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion
    • Indecent exposure
    • Forcing the watching of pornography or live sexual activity
  • By a person age 18 or older to a person not his or her spouse who is younger than age 15, or by a person age 20 or older to person not his or her spouse age 16 or younger:
    • Sexual intercourse, deviate sexual activity, or sexual contact
    • Attempted sexual intercourse, deviate sexual activity, or sexual contact
    • Solicitation of sexual intercourse, deviate sexual activity, or sexual contact
  • By a caregiver to a person younger than age 18:
    • Sexual intercourse, deviate sexual activity, or sexual contact
    • Attempted sexual intercourse, deviate sexual activity, or sexual contact
    • Forcing or encouraging the watching of pornography
    • Forcing, permitting, or encouraging the watching of live sexual activity
    • Forcing the listening to a phone sex line
    • An act of voyeurism
    • Solicitation of sexual intercourse, deviate sexual activity, or sexual contact

‘Sexual exploitation’ means any of the following by a person age 18 or older to a child who is not his or her spouse or by a caregiver of a child:

  • Allowing, permitting, or encouraging participation or depiction of the child in prostitution, obscene photography, or obscene filming
  • Obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose

‘Sexually exploited child’ means a person younger than age 18 who has been subject to sexual exploitation because the person:

  • Is a victim of trafficking of persons under § 5-18-103
  • Is a victim of child sex trafficking under 18 U.S.C. § 1591
  • Engages in an act of prostitution or sexual solicitation
Emotional Abuse

The term ‘abuse’ includes acts or omissions that result in injury to a child’s intellectual, emotional, or psychological development, as evidenced by observable and substantial impairment of the child’s ability to function within the child’s normal range of performance and behavior.

Abandonment

Citation: Ann. Code § 12-18-103
‘Abandonment’ means:

  • The failure of a parent to provide reasonable support
  • The failure of a parent to maintain regular contact with a child through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future
  • The failure of a parent to support or maintain regular contact with a child without just cause
  • An articulated intent to forego parental responsibility

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Standards for Reporting

Citation: Ann. Code § 12-18-402
A mandatory reporter shall immediately notify the child abuse hotline if he or she:

  • Has reasonable cause to suspect that a child has been subjected to child maltreatment, has died as a result of child maltreatment, or died suddenly and unexpectedly
  • Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment

The term ‘died suddenly and unexpectedly’ means a child death that was not caused by a known disease or illness for which the child was under a physician’s care at the time of death, including, without limitation, child deaths as a result of the following:

  • Sudden infant death syndrome
  • Sudden unexplained infant death
  • An accident
  • A suicide
  • A homicide
  • Other undetermined circumstance
Persons Responsible for the Child

A responsible person includes:

  • A parent, guardian, custodian, or foster parent
  • A person age 18 or older living in the home with a child, whether related or unrelated to the child
  • Any person who is entrusted with the child’s care by a parent, guardian, custodian, or foster parent, including, but not limited to:
    • An agent or employee of a public or private residential home, child care facility, or public or private school
    • A significant other of the child’s parent
    • Any person legally responsible for the child’s welfare

The term ‘significant other’ means a person with whom the parent shares a household or who has a relationship with the parent that results in the person acting in loco parentis with respect to the parent’s child or children, regardless of living arrangements.

Exceptions

Abandonment does not include acts or omissions of a parent toward a married minor.

Abuse does not include:

  • Physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child
  • When a child suffers transient pain or minor temporary marks as the result of an appropriate restraint if:
    • The person exercising the restraint is an employee of a licensed child welfare agency acting in his or her official capacity while on duty.
    • The agency has policy and procedures regarding restraints.
    • No other alternative exists to control the child except for a restraint.
    • The child is in danger or hurting himself or herself or others.
    • The person exercising the restraint has been trained in properly restraining children, deescalation, and conflict resolution techniques.
    • The restraint is for a reasonable period of time.
    • The restraint is in conformity with training and agency policy and procedures.

Reasonable and moderate physical discipline inflicted by a parent or guardian does not include any act that is likely to cause and that does cause injury more serious than transient pain or minor temporary marks. The age, size, and condition of the child, the location of the injury, and the frequency or recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate.

It is not considered neglect when the failure to provide appropriate care is caused primarily by the financial inability of the person legally responsible, and no services for relief have been offered.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means:

  • Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members
  • Any sexual conduct between family or household members, whether minors or adults, that constitutes a crime under the laws of this State
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘First-degree domestic battering’ means:

  • Causing serious physical injury to a family member with a deadly weapon
  • Seriously and permanently disfiguring a family member or destroying, amputating, or permanently disabling a part of his or her body
  • Causing serious physical injury under circumstances manifesting extreme indifference to the value of human life
  • Causing serious physical injury to a family member who is age 60 or older or age 12 or younger
  • Committing two or more acts of domestic battering within the past 10 years

‘Second-degree domestic battering’ means:

  • Causing serious physical injury to a family member
  • Causing or recklessly causing physical injury with a deadly weapon
  • Causing physical injury to a family member who is age 60 or older or age 12 or younger

‘Third-degree domestic battering’ means:

  • Causing or recklessly causing physical injury to a family member
  • Negligently causing physical injury to a family member with a deadly weapon
  • Causing stupor, unconsciousness, or physical or mental impairment to a family member by administering any drug or other substance

A person commits ‘aggravated assault on a family or household member’ if, under circumstances manifesting extreme indifference to the value of human life, the person purposely:

  • Engages in conduct that creates a substantial danger of death or serious physical injury
  • Displays a firearm in a manner that creates a substantial danger of death or serious physical injury
  • Impedes the breathing of a family or household member

A person commits ‘first-degree assault on a family or household member’ if the person recklessly engages in conduct that creates a substantial risk of death or serious physical injury.

A person commits ‘second-degree assault on a family or household member’ if the person recklessly engages in conduct that creates a substantial risk of physical injury.

A person commits ‘third-degree assault on a family or household member’ if the person purposely creates apprehension of imminent physical injury.

Persons Included in the Definition

In civil law: ‘Family or household members’ means spouses, former spouses, parents, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presently or in the past have resided together or cohabited, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together.

In criminal law: ‘Family or household member’ means:

  • A spouse or former spouse
  • A parent
  • A child, including any minor residing in the household
  • Persons related by blood within the fourth degree of consanguinity
  • Persons who presently or in the past have resided or cohabited together
  • Persons who have or have had a child in common
  • Persons who are presently or in the past have been in a dating relationship together

The degree of consanguinity is computed pursuant to § 28-9-212.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

A person or agency required by this chapter to report suspected child maltreatment who acts in good faith in making a notification, taking of a photograph or radiological test, or the removal of a child while exercising a 72-hour hold, is immune to suit and to civil and criminal liability.

If acting in good faith, a person making notification not named in this section is immune from liability.

A publicly supported school, facility, or institution acting in good faith by cooperating with the investigative agency under this chapter shall be immune from civil and criminal liability.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A person may notify the child abuse hotline immediately if he or she:

  • Has reasonable cause to suspect that child maltreatment has occurred or a child has died as a result of child maltreatment
  • Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment

An individual listed as a mandated reporter shall notify the child abuse hotline immediately if he or she:

  • Has reasonable cause to suspect that a child has been subjected to child maltreatment or died as a result of child maltreatment
  • Observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment
Content of Reports

For an investigation to commence, the report must contain sufficient information to identify and locate the child or the family.

An investigation shall seek to determine:

  • The existence, cause, nature, and extent of the child maltreatment
  • The existence and extent of previous injuries
  • The identity of the person responsible for the child maltreatment
  • The names and conditions of other children in the home
  • The circumstances of the parents or caregivers of the child
  • The environment where the child resides
  • The relationship of the child or children with the parents or caregivers
  • All other pertinent data
Reporting Suspicious Deaths

A person may notify the child abuse hotline immediately if he or she has reasonable cause to suspect that a child has died as a result of child maltreatment. A mandated reporter shall notify the child abuse hotline immediately if he or she has reasonable cause to suspect that a child has died as a result of child maltreatment.

Reporting Substance-Exposed Infants

All health-care providers involved in the delivery or care of infants shall:

  • Contact the Department of Human Services regarding an infant born and affected with a fetal alcohol spectrum disorder
  • Share all pertinent information, including health information, with the department regarding an infant born and affected with a fetal alcohol spectrum disorder

The department shall accept referrals, calls, and other communications from health-care providers involved in the delivery or care of infants born and affected with a fetal alcohol spectrum disorder. The department shall develop a plan of safe care for infants affected with a fetal alcohol spectrum disorder.

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Agency Receiving the Reports

The child abuse hotline, a unit established within the Department of Human Services or its designee, shall receive and record reports under this chapter. All persons, whether a mandated reporter or not, may use the child abuse hotline to report child maltreatment or suspected child maltreatment.

Initial Screening Decisions

The child abuse hotline shall accept a report of child maltreatment or suspected child maltreatment if:

  • The allegations, if true, would constitute child maltreatment as defined under this chapter.
  • Sufficient identifying information is provided to identify and locate the child or the child’s family.
  • The child or the child’s family is present in Arkansas or the incident occurred in Arkansas.
Agency Conducting the Assessment/Investigation

The Department of Human Services shall cause an investigation to be made upon receiving initial notification of suspected child maltreatment.

Assessment/Investigation Procedures

At the initial time of contact with the alleged offender, the person conducting the investigation shall advise the alleged offender of the allegations made against the alleged offender in a manner that is consistent with the laws protecting the rights of the person who made the report.

Upon initiation of the investigation, the primary focus of the investigation shall be whether or not the alleged offender has access to children and whether or not children are at risk and need to be protected.

An investigation of child maltreatment or suspected child maltreatment shall include interviews with:

  • The child
  • The parents, both custodial and noncustodial
  • The alleged offender if neither parent is the alleged offender
  • Any other relevant persons

A person conducting an investigation of a child victim shall have the discretion:

  • In the child’s best interests, to limit the persons allowed to be present when a child is being interviewed concerning allegations of child maltreatment
  • As it relates to the integrity of the investigation, to limit persons present during an interview

The interview with the child victim shall be conducted separate and apart from the alleged offender or any representative or attorney for the alleged offender. If the age or abilities of the child victim render an interview impossible, the investigation shall include observation of the child.

Timeframes for Completing Investigations

All investigations shall begin within 72 hours. However, the investigation shall begin within 24 hours if:

  • The allegation is severe maltreatment, excluding an allegation of sexual abuse if the most recent allegation of sexual abuse was more than 1 year ago or the alleged victim does not currently have contact with the alleged offender.
  • The allegation is that a child has been born with exposure to an illegal substance.
Classification of Reports

Upon completion of an investigation, the department shall determine whether the allegations of child maltreatment are:

  • Unsubstantiated: An unsubstantiated determination shall be entered when the allegation is not supported by a preponderance of the evidence.
  • True: A true determination shall be entered when the allegation is supported by a preponderance of the evidence.
  • True but exempted, which means that the offender’s name shall not be placed in the child maltreatment central registry. This shall be entered if:
    • A parent practicing his or her religious beliefs does not, for that reason alone, provide medical treatment for a child, but in lieu of treatment the child is being furnished with treatment by spiritual means alone, through prayer, in accordance with a recognized religious method of healing by an accredited practitioner.
    • The offender is an underaged juvenile offender.
    • The report was true for neglect, as defined under § 12-18-103(13)(B).
    • The report was true for sexual abuse by an offender who is at least age 13 but younger than age 16, and the offender has not been adjudicated delinquent or has not pleaded guilty, nolo contendere, or been found guilty of an offense on the same set of facts as contained in the report.
  • Inactive: If the investigation cannot be completed, the investigation shall be determined incomplete and placed in inactive status.

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Abuse’ means any of the following acts or omissions by a parent; guardian; custodian; foster parent; person age 18 or older living in the home with a child, whether related or unrelated to the child; or any person who is entrusted with the juvenile’s care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school; or any person legally responsible for the juvenile’s welfare, but excluding the spouse of a minor:

  • Giving a child or permitting a child to consume or inhale a poisonous or noxious substance not prescribed by a physician that has the capacity to interfere with normal physiological functions
  • Giving a child or permitting a child to consume or inhale a substance not prescribed by a physician that has the capacity to alter the mood of the child, including, but not limited to, the following:
    • Marijuana
    • Alcohol, excluding alcohol given to a child during a recognized and established religious ceremony or service
    • A narcotic
    • An over-the-counter drug, if a person purposely administers an overdose to a child or purposely gives an inappropriate over-the-counter drug to a child and the child is detrimentally impacted by the overdose or the over-the-counter drug
  • Exposing a child to a chemical that has the capacity to interfere with normal physiological functions, including, but not limited to, a chemical used or generated during the manufacture of methamphetamine

A person who is found guilty of or who pleads guilty or nolo contendere to manufacture of methamphetamine (§ 5-64-423) or possession of drug paraphernalia with the purpose to manufacture methamphetamine (§ 5-64-443(a)(1)) may be subject to an enhanced sentence of an additional term of imprisonment of 10 years if the offense is committed:

  • In the presence of a minor, elderly person, or incompetent person who may or may not be related to the person
  • With a minor, elderly person, or incompetent person in the same home or building where the methamphetamine was being manufactured or the drug paraphernalia to manufacture methamphetamine was in use or was in preparation to be used
  • With a minor, elderly person, or incompetent person present in the same immediate area or in the same vehicle at the time of the person’s arrest for the offense

The enhanced portion of the sentence is consecutive to any other sentence imposed.

Any person sentenced under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.

As used in this section:

  • ‘Elderly person’ means any person age 70 or older.
  • ‘Incompetent person’ means any person who is incapable of consent because he or she is physically helpless, mentally defective, or mentally incapacitated.
  • ‘Minor’ means any person under age 18.

All health-care providers involved in the delivery or care of infants shall:

  • Contact the Department of Human Services regarding an infant born and affected with a fetal alcohol spectrum disorder
  • Share all pertinent information, including health information, with the department regarding an infant born and affected with a fetal alcohol spectrum disorder

The department shall accept referrals, calls, and other communications from health-care providers involved in the delivery or care of infants born and affected with a fetal alcohol spectrum disorder. The department shall develop a plan of safe care for infants affected with a fetal alcohol spectrum disorder.

‘Neglect’ shall include:

  • Causing a child to be born with an illegal substance present in the child’s bodily fluids or bodily substances as a result of the pregnant mother’s knowingly using an illegal substance before the birth of the child
  • At the time of the birth of a child, the presence of an illegal substance in the mother’s bodily fluids or bodily substances as a result of the pregnant mother’s knowingly using an illegal substance before the birth of the child

As used in this subdivision, ‘illegal substance’ means a drug that is prohibited to be used or possessed without a prescription under the Arkansas Criminal Code, § 5-1-101, et seq. A test of the child’s bodily fluids or bodily substances may be used as evidence to establish neglect under this subdivision. A test of the mother’s bodily fluids or bodily substances may be used as evidence to establish neglect under this subdivision.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court shall appoint an attorney ad litem when a dependency-neglect petition is filed or when an emergency ex parte order is entered in a dependency-neglect case, whichever occurs earlier.

The court may appoint an attorney ad litem to represent the best interests of a child involved in any case before the court and shall consider the child’s best interests in determining whether to appoint an attorney ad litem.

The Use of Court-Appointed Special Advocates (CASAs)

The court may appoint a volunteer court-appointed special advocate (CASA) from a program that shall meet all State and national CASA standards to advocate for the best interests of juveniles in dependency-neglect proceedings. No CASA shall be assigned a case before:

  • Completing a training program in compliance with National Court-Appointed Special Advocate Association and State standards
  • Being approved by the local CASA program, including appropriate criminal background and child abuse registry checks

Each CASA shall:

  • Investigate the case to which he or she is assigned to provide independent factual information to the court through the attorney ad litem, court testimony, or court reports
  • Monitor the case to which he or she is assigned to ensure compliance with the court’s orders

The CASA may testify if called as a witness. When the CASA prepares a written report for the court, the advocate shall provide all parties or the attorney of record with a copy of the written report 7 business days before the relevant hearing.

Upon presentation of an order of appointment, a CASA shall be provided access to all records relevant to the child’s case including, but not limited to, school records, medical records, all court records relating to the child and his or her family, and department records to the extent permitted by Federal law.

A CASA is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses.

Qualifications/Training

The Supreme Court shall adopt standards of practice and qualifications for service for all attorneys who seek employment or contracts to provide legal representation to children in dependency-neglect cases.

The court shall appoint an attorney ad litem who shall meet standards and qualifications established by the Supreme Court to represent the best interests of the juvenile when a dependency-neglect petition is filed or when an emergency ex parte order is entered in a dependency-neglect case, whichever occurs earlier.

In court rules: Prior to appointment, an attorney ad litem shall have initial education to include approved legal education of not less than 10 hours in the 2 years prior to the date an attorney qualifies as a court-appointed attorney for children in dependency-neglect cases. Initial training must include:

  • Child development
  • Dynamics of abuse and neglect
  • Attorney roles and responsibilities, including ethical considerations
  • Relevant State law, Federal law, case law, and rules
  • Family dynamics, including, but not limited to, substance abuse, domestic violence, and mental health issues
  • Division of Children and Family Services policies and procedures
  • Additional initial legal education that may include, but is not limited to:
    • Grief and attachment
    • Custody and visitation
    • Resources and services
    • Trial and appellate advocacy

The Administrative Office of the Courts (AOC) shall design and conduct programs for the initial 10 hours of legal education, either alone or in collaboration with other agencies or entities.

Following completion of the initial 10 hours of legal education, continuing legal education shall include at least 4 hours per year related to representation in dependency-neglect cases that may include, but is not limited to, the subject categories listed above.

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Specific Duties

An attorney ad litem shall:

  • File written motions, responses, or objections at all stages of the proceedings when necessary to protect the best interests of the child
  • Attend all hearings and participate in all telephone conferences with the court unless excused by the court
  • Present witnesses and exhibits when necessary to protect the child’s best interests

An attorney ad litem shall be provided access to all records relevant to the child’s case, including, but not limited to, school records, medical records, all court records relating to the child and his or her family, and records of the Department of Human Services to the extent permitted by Federal law.

An attorney ad litem shall represent the best interests of the child. If the child’s wishes differ from the attorney’s determination of the child’s best interests, the attorney ad litem shall communicate the child’s wishes to the court in addition to presenting his or her determination of the child’s best interests.

In court rules: An attorney ad litem shall determine the best interests of a child by considering such factors as the child’s age and sense of time, level of maturity, culture and ethnicity, degree of attachment to family members including siblings, as well as continuity, consistency, and the child’s sense of belonging and identity.

An attorney ad litem shall:

  • Make earnest efforts to attend all case staffings and court-ordered mediation conferences and to meet with his or her client prior to every hearing
  • Appear at all hearings to represent the best interests of the child and present all relevant facts to the court and, if the child’s wishes differ from the ad litem’s determination of the child’s best interests, communicate the child’s wishes to the court
  • Explain the court proceedings and the role of the ad litem in terms that the child can understand
  • Advocate for specific and appropriate services for the child and the child’s family
  • Monitor implementation of case plans and court orders
  • File appropriate pleadings on behalf of the child
  • Review the progress of the child’s case and advocate for timely hearings
  • Request orders that are clear, specific, and, where appropriate, include a time line for assessment, services, placement, treatment, and evaluation of the child and the child’s family
How the Representative Is Compensated

The director of the AOC is authorized to employ or enter into professional service contracts with private individuals or businesses or public agencies to represent all children in dependency-neglect proceedings. Before employing or entering into a contract or contracts, the office shall consult with the judges of the circuit court designated to hear dependency-neglect cases.

Those obtaining employment or contracts through the office will be designated as the providers for representation of children in dependency-neglect cases in each judicial district.

The distribution of funds among the judicial districts shall be based on a formula developed by the office and approved by the Juvenile Judges Committee of the Arkansas Judicial Council. In the transition to a State-funded system of dependency-neglect representation, it is the intent of the General Assembly to provide an appropriate and adequate level of representation to all children in dependency-neglect proceedings as required under Federal and State law.

The court may also require the parties to pay all or a portion of the expenses, depending on the ability of the parties to pay.

The office shall establish guidelines to provide a maximum amount of expenses and fees per hour and per case that will be paid.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A case plan shall be developed in all dependency-neglect cases or any case involving an out-of-home placement. The Department of Human Services shall be responsible for developing case plans in all dependency-neglect cases and in family in need of services or delinquency cases when custody is transferred to the department.

The Department of Human Services shall be responsible for developing case plans in all dependency-neglect cases and in family-in-need-of-services cases when custody is transferred to the department. The case plan shall be developed and filed with the court no later than 30 days after the date the petition was filed or the child was first placed out of home, whichever is sooner.

If the department does not have sufficient information before the adjudication hearing to complete all parts of the case plan, the department shall complete those parts for which information is available. All parts of the case plan shall be completed and filed with the court 30 days after the adjudication hearing.

Who May Participate in the Case Planning Process

The case plan shall be developed in consultation with the child’s parent, guardian, or custodian and, if appropriate, the child, the child’s foster parents, the court-appointed special advocate, the child’s attorney ad litem, and all parties’ attorneys.

If the parents are unwilling or unable to participate in the development of the case plan, the department shall document the parents’ unwillingness or inability to participate and provide a copy of the written documentation to the parent, if available. The department shall then prepare a case plan conforming as nearly as possible to the requirements set forth in this section.

A parent’s incarceration, by itself, does not make a parent unavailable to participate in the development of a case plan.

Contents of a Case Plan

When the child is receiving services at home, the case plan shall include, at minimum, descriptions of:

  • The problems being addressed
  • The services to be provided to the family and child
  • Any reasonable accommodations made to the parents in accordance with the Americans with Disabilities Act of 1990 to assure meaningful access to services
  • How the child’s health and safety will be protected

When the child is in an out-of-home placement, the case plan also must include:

  • A description of the permanency goal
  • The specific reasons for the out-of-home placement
  • A description of the type of out-of-home placement selected for the child, including a discussion of the appropriateness of the placement
  • A plan for addressing the child’s needs while in the placement
  • The specific actions to be taken by the parent to correct the identified problems or conditions
  • The visitation rights and obligations of the parent
  • The services to be provided to the parent, and a timetable for providing the services, to strengthen family life and promote reunification
  • The child’s health and education records
  • The parent’s support obligation, including health insurance
  • A description of the location of siblings, with documentation of the efforts to:
    • Place siblings removed from their home in the same placement, unless the department documents that a joint placement would be contrary to the safety or well-being of any of the siblings
    • Provide for frequent visitation or other ongoing interaction between the siblings in the case of siblings removed from their home who are not placed together, unless the department documents that frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings
  • When appropriate for a child age 16 and older, the programs and services that will help the child prepare for the transition to independent living
  • A written notice to the parent that failure to comply substantially with the case plan may result in the termination of parental rights

The plan for a child in foster care must take into account the appropriateness of the current educational setting and the proximity of the school in which the child is enrolled at the time of placement. The department will coordinate with local educational agencies to ensure that the child remains in the same school, whenever possible, or to provide immediate and appropriate enrollment in a new school.

The department shall provide the juvenile with assistance and support in developing a transition plan that is personalized at the direction of the juvenile and includes specific options on housing, health insurance, educational opportunities, local opportunities for mentors and continuing support services, and workforce supports and employment services, and is as detailed as the juvenile may elect.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court shall review every case of dependency-neglect or families in need of services when:

  • A juvenile is placed by the court in the custody of the Department of Human Services or in another out-of-home placement until there is a permanent order of custody, guardianship, or other permanent placement for the juvenile.
  • A juvenile is returned to the parent from whom the child was removed, another fit parent, guardian, or custodian and the court has not discontinued orders for family services.

The first 6-month review shall be held no later than 6 months from the date of the original out-of-home placement of the child and shall be scheduled by the court following the adjudication and disposition hearing. The case shall be reviewed every 6 months thereafter until permanency is achieved. The court may require these cases to be reviewed prior to the 6-month review hearing, and the court shall announce the date, time, and place of the hearing.

Persons Entitled to Attend Hearings

The following persons may petition the court:

  • The Department of Human Services
  • The attorney ad litem
  • The parties and their counsel
Determinations Made at Hearings

At each review hearing, the court shall determine whether:

  • The case plan, services, and placement meet the special needs and best interests of the child, with the child’s health, safety, and educational needs specifically addressed.
  • The State has made reasonable efforts to provide family services.
  • The case plan is moving toward an appropriate permanency plan.
  • The visitation plan is appropriate for the child, the parent or parents, and any siblings, if separated.

In making its findings, the court shall consider the following:

  • The extent of compliance with the case plan, including, but not limited to, a review of the department’s care for the health, safety, and education of the child while he or she has been in an out-of-home placement
  • The extent of progress that has been made toward alleviating or mitigating the causes of the out-of-home placement
  • Whether the child should be returned to his or her parent or parents and whether or not the child’s health and safety can be protected by his or her parent or parents if returned home
  • An appropriate permanency plan for the child, including concurrent planning

At every permanency planning hearing, the court shall make a finding on whether the department has made reasonable efforts and shall describe the efforts to finalize a permanency plan for the child.

Permanency Options

At the permanency planning hearing, based upon the facts of the case, the court shall enter one of the following permanency goals, listed in order of preference, in accordance with the best interests of the child:

  • Returning the child to the parent if the child’s health and safety can be adequately safeguarded
  • Authorizing a plan to return the child to the parent only if the court finds that:
    • The parent is complying with the case plan, making significant measurable progress toward achieving the goals of the case plan, and diligently working toward reunification.
    • The parent is making significant and measurable progress toward remedying the conditions that caused the child’s removal from the home.
    • The return of the child to the parent shall occur within a timeframe that is consistent with the child’s developmental needs but no later than 3 months from the date of the permanency planning hearing.
  • Authorizing a plan for adoption with the department filing a petition for termination of parental rights unless:
    • The child is being cared for by a relative, including a minor foster child caring for his or her own child who is in foster care, and termination of parental rights is not in the best interests of the child.
    • The department has documented in the case plan a compelling reason why filing such a petition is not in the best interests of the child.
    • The department has not provided to the family of the child the services needed for the safe return of the child to the child’s home.
  • Authorizing a plan to obtain a guardian for the child
  • Authorizing a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative
  • Authorizing a plan for another planned permanent living arrangement, including, but not limited to, Independent Living services and a plan for the supervision and nurturing the juvenile will receive

Determining the Best Interests of the Child

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Current Through March 2016

The General Assembly recognizes that children are defenseless and that there is no greater moral obligation upon the General Assembly than to provide for the protection of our children, and that our child welfare system needs to be strengthened by establishing a clear policy of the State that the best interests of the children must be paramount and shall have precedence at every stage of juvenile court proceedings. The best interests of the child shall be the standard for juvenile court determinations as to whether a child should be reunited with his or her family or removed from or remain in a home wherein the child has been abused or neglected.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence that it is in the best interests of the child, including consideration of one or more of the following grounds:

  • The child has been found to be dependent-neglected and has been out of the custody of the parent for 12 months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
  • The child has lived outside the home of the parent for a period of 12 months, and the parent has willfully failed to provide significant material support in accordance with the parent’s means or to maintain meaningful contact with the child.
  • The presumptive legal father is not the biological father of the child, and the welfare of the child can best be served by terminating the parental rights of the presumptive legal father.
  • A parent has abandoned the child.
  • A parent has executed consent to termination of parental rights or adoption of the child.
  • The court has found the child or a sibling dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the child’s parent or stepparent.
  • The parent has manifested the incapacity or indifference to remedy the parent’s circumstances that prevent return of the child to the custody of the parent. The inability or incapacity to remedy or rehabilitate includes, but is not limited to, mental illness, emotional illness, or mental deficiencies.
  • The parent is incarcerated for a period of time that would constitute a substantial period of the child’s life.
  • The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have:
    • Committed murder or manslaughter of any child or to have aided or abetted, attempted, conspired, or solicited to commit such crime
    • Committed a felony battery that results in serious bodily injury to any child or to have aided or abetted, attempted, conspired, or solicited to commit such crime
    • Subjected any child to aggravated circumstances
    • Had his or her parental rights involuntarily terminated as to a sibling of the child
    • Abandoned an infant, as defined by § 9-27-303(2)

‘Aggravated circumstances’ means:

  • A child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.
  • A child has been removed from the custody of the parent or guardian and placed in foster care or in the custody of another person three or more times in the past 15 months.
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.

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Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A child who is 30 days old or younger may be relinquished.

Who May Relinquish the Infant

A child may be relinquished by his or her parent or a person designated by the parent.

Who May Receive the Infant

The child may be left with any medical provider or law enforcement agency.

Responsibilities of the Safe Haven Provider

Any medical provider or law enforcement agency shall, without a court order, take possession of a child who is 30 days old or younger if the child is left with or voluntarily delivered to the medical provider or law enforcement agency by the child’s parent who does not express an intent to return for the child.

A medical provider or law enforcement agency that takes possession of a child shall perform any act necessary to protect the physical health and safety of the child.

Upon delivery of the child, the law enforcement officer or an appropriate hospital employee shall take the child into protective custody for 72 hours and immediately notify the Division of Children and Family Services of the Department of Human Services.

Immunity for the Provider

A medical provider or law enforcement agency shall incur no civil or criminal liability for any good-faith acts or omissions performed pursuant to this section.

Protection for Relinquishing Parent

The fact that a parent voluntarily delivered a child to and left the child with, or voluntarily arranged for another person to deliver a child to and leave the child with, a medical provider or law enforcement agency serves as an affirmative defense to a prosecution for endangering the child.

This section specifically does not constitute a defense to any prosecution arising from an act of abuse or neglect committed prior to the delivery of a child to a medical provider or law enforcement agency.

Effect on Parental Rights

The department will initiate a dependency action [to place the child in a permanent home].

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

A ‘custodian’ is a person other than a parent or legal guardian who stands in loco parentis to the juvenile or a person, agency, or institution to whom a court of competent jurisdiction has given custody of a juvenile by court order. The term ‘custodian’ includes a person to whom a court of competent jurisdiction has given custody, including a legal guardian.

A ‘guardian’ is any person, agency, or institution, as defined by § 28-65-101, et seq., whom a court of competent jurisdiction has so appointed.

‘Permanent custody’ means custody that is transferred to a person as a permanency disposition in a juvenile case and the case is closed.

‘Fictive kin’ means a person not related to a child by blood or marriage, but who has a strong positive emotional tie to the child and has a positive role in the child’s life, such as a godparent, neighbor, or family friend. ‘Relative’ means a person within the fifth degree of kinship by virtue of blood or adoption.

From ‘A Relative’s Guide to the Arkansas Child Welfare System’: Guardianship: If the court grants legal guardianship, this is a legal, permanent connection for the child, though not as permanent as adoption; no further court hearings are required. For a legal guardianship, The Department of Human Services will conduct an annual review of the family’s and child’s circumstances, and an annual report to the court must be filed.

Permanent Custody: If the court grants permanent custody, no further services or periodic reviews are required. The case will be closed and the family will not receive support from the department. This is different from legal guardianship as the relative will not qualify for a subsidy and the department does not file an annual report with the court.

Purpose of Guardianship

A child in foster care shall be entitled to be placed in the custody or foster home of relatives, if appropriate, provided the relative caregiver meets all relevant child protection standards.

In regulation: In all custodial placements by the department in foster care or adoption, preferential consideration shall be given to an adult relative over a nonrelated caregiver if the relative caregiver meets all relevant child protection standards and it is in the best interests of the child to be placed with the relative caregiver. If there are no available and/or appropriate relatives within the fifth degree of kinship to the child, then the department shall attempt to identify appropriate fictive kin, to include people beyond the fifth degree of kinship by virtue of blood or adoption, as a placement option for the child.

Relatives and fictive kin have the option of obtaining permanent custody or guardianship if all efforts toward reunification are exhausted and/or to achieve case plan goals for permanency. If the court grants permanent custody, or guardianship is granted, the protective services case will be closed.

A Guardian’s Rights and Responsibilities

It shall be the duty of any person or agency appointed as the custodian of any child to care for and maintain the child. The custodian must ensure that the child is protected, properly trained and educated, and has the opportunity to learn a trade, occupation, or profession.

The custodian of a child has the right to obtain medical care for the child, including giving consent to specific medical, dental, or mental health treatments and procedures as required in the opinion of a duly authorized or licensed physician, dentist, surgeon, or psychologist, whether or not such care is rendered on an emergency, inpatient, or outpatient basis.

If there is an open dependency-neglect proceeding, the custodian shall not make any of the following decisions without receiving express court approval:

  • Consent to the removal of bodily organs, unless the procedure is necessary to save the life of the child
  • Consent to withhold life-saving or life-sustaining treatments or the amputation of any body part

The custodian has the right:

  • To enroll the child in school upon the presentation of an order of custody
  • To obtain medical and school records of any child in his or her custody upon presentation of an order of custody
  • To consent to the child’s travel on vacation or similar trips

It shall be the duty of every person granted custody, guardianship, or adoption of any child in a proceeding arising out of a dependency-neglect action to ensure that the child is not returned to the care or supervision of any person from whom the child was removed or any person the court has specifically ordered not to have care, supervision, or custody of the child.

Qualifying the Guardian

A relative may be appointed guardian of a child when the department determines the following:

  • The child has been removed from the custody of his or her parent or parents as a result of a judicial determination to the effect that continuation in the custody of the parent or parents would be contrary to the welfare of the child.
  • Being returned home or being adopted is not an appropriate permanency option for the child.
  • Permanent placement with a guardian is in the best interests of the child.
  • The child demonstrates a strong attachment to the prospective guardian, and the guardian has a strong commitment to caring permanently for the child.
  • With respect to a child who has reached age 14, the child has been consulted regarding the guardianship.
  • The necessary degree of relationship exists between the prospective guardian and the child.
  • The home of the prospective guardian complies with any applicable rules for foster home approval.
  • The child has resided in the home of the prospective relative guardian for at least 6 consecutive months after the prospective guardian’s home was opened as a foster home.

A home study is a written report that presents the findings of the investigation of a home by the department. An instate home study, excluding the results of a criminal records check, shall be completed and presented to the requesting court within 30 days of the receipt of the request for the home study. The results of the criminal records check shall be provided to the court as soon as they are received.

The person or agency conducting the home study shall have the right to obtain a criminal background check on any person in the household age 16 and older, including a fingerprint-based check of national crime information databases. Upon request, local law enforcement shall provide the person or agency conducting the home study with criminal background information on any person in the household age 16 and older.

Procedures for Establishing Guardianship

If a relative or other person inquires about the placement of a child in his or her home, the department shall discuss with the relative or other person about becoming a department foster home or obtaining legal custody of the child. The court may grant custody of the child to the relative or fictive kin after an approved written home study is presented to the court.

In regulation: If the relative or fictive kin chooses to obtain legal custody of the juvenile, a protective services case must be opened on the child and a case plan developed to establish permanency for the child. The department must provide services similar to the services that would have been provided if the child was placed in foster care, and the case plan must address these services.

If it is determined at the permanency planning hearing that a guardianship arrangement with relatives is in the child’s best interests, the child’s permanency goal is changed to legal guardianship. When it is in the best interests of each of the children, the department shall attempt to place siblings together in the same guardianship arrangement. Siblings may be related by biological, marital, or legal ties.

Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

This issue is not addressed in the statutes and regulations reviewed.

Eligibility for Guardianship Subsidy

A child is eligible for a guardianship subsidy if the Department of Human Services determines the following:

  • The child has been removed from the custody of his or her parent(s) as a result of a judicial determination to the effect that continuation in the custody of the parent(s) would be contrary to the welfare of the child.
  • The department is responsible for the placement and care of the child.
  • Being returned home or being adopted is not an appropriate permanency option for the child.
  • Permanent placement with a guardian is in the best interests of the child.
  • The child demonstrates a strong attachment to the prospective guardian, and the guardian has a strong commitment to caring permanently for the child.
  • With respect to a child who has reached age 14, the child has been consulted regarding the guardianship.
  • The necessary degree of relationship exists between the prospective guardian and the child.
  • The child is eligible for title IV-E foster care maintenance payments, or the department determines that adequate funding is available for the guardianship subsidy for a child who is not title IV-E eligible.
  • The home of the prospective guardian complies with any applicable rules for foster home approval.
  • While in the custody of the department, the child resided in the home of the prospective relative guardian for at least 6 consecutive months after the prospective guardian’s home was opened as a foster home.
Links to Agency Policies

A Relative’s Guide to the Arkansas Child Welfare System (PDF – 972 KB)

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

In all custodial placements for foster care made by the Department of Human Services, preferential consideration shall be given to an adult relative over a nonrelated caregiver.

The department shall exercise due diligence to identify and provide notice to all grandparents and other adult relatives of a child transferred to the custody of the department. The notice shall:

  • Be given within 30 days after the child is transferred to the custody of the department
  • Include grandparents or adult relatives suggested by the parent or parents of the child

The required notice shall state:

  • That the child has been or is being removed from the parent
  • The option to participate in the care of the child, placement with the child, and visits with the child
  • That failure to respond to the notice may result in loss of options listed above
  • The requirements to become a provisional foster home and the additional services and supports that are available for children in a foster home
  • How the relative could enter into a kinship guardianship agreement with the department if kinship guardianship is available

The department may provide notice of a child transferred to the custody of the department to persons who have a strong, positive emotional tie to the child and have a positive role in the child’s life but are not related by blood, adoption, or marriage.

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Requirements for Placement with Relatives

The relative caregiver must meet all relevant child protection standards, and it must be in the child’s best interests to be placed with the relative caregiver.

The department is not required to give notice to a grandparent or other adult relative if the grandparent or other adult relative has:

  • A pending charge, past conviction, or plea of guilty or nolo contendere for family or domestic violence
  • A true finding of child maltreatment in the child maltreatment central registry

In regulation: A relative is a person who is within the fifth degree of kinship to the child by virtue of blood, adoption, or marriage. The department may place a child in foster care with a relative if one has been identified and is appropriate. This type of placement is classified as a provisional foster home. A provisional foster home enables the department to make a quick placement for a child with a relative with whom a bond already exists. Provisional foster homes must meet certain requirements, including an expedited central registry check, an expedited criminal record check, a vehicle safety check, and a visual inspection of the home to verify that the relative and the home meet standards.

Once opened as a provisional foster home, the provisional foster parents must work to bring the home into full compliance with foster licensing requirements within 6 months. Provisional foster homes that are not in full compliance at the end of 6 months must be closed and the children removed, unless the relative has been granted permanent custody by the court. Provisional foster homes will not be paid a board payment until the relative meets all of the licensing requirements and standards and is reclassified as a regular foster home.

Requirements for Placement of Siblings

When it is in the best interests of each of the children, the department shall attempt to place:

  • A sibling group together while they are in foster care and adoptive placement
  • An infant of a minor mother together with the minor mother in foster care

As used in this section:

  • ‘Fictive kin’ means a person not related to a child by blood or marriage but who has a strong positive emotional tie to a child and has a positive role in the child’s life, such as a godparent, neighbor, or family friend.
  • ‘Relative’ means a person within the fifth degree of kinship by virtue of blood or adoption.

For placement with a relative or fictive kin, the child and his or her siblings or stepsiblings may be placed in the home of a relative or fictive kin on a provisional basis no more than 6 months pending the home of the relative or fictive kin being opened as a regular foster home. If the home of the relative or fictive kin is not fully licensed as a foster home after 6 months, the department shall remove the child and any siblings or stepsiblings from the home, or the court shall remove custody of the child and any siblings or stepsiblings from the department and grant custody to the relative or fictive kin.

Relatives Who May Adopt

In all custodial placements for adoption made by the department, preferential consideration shall be given to an adult relative over a nonrelated caregiver.

The term ‘relative’ means a person within the fifth degree of kinship by virtue of blood or adoption.

Requirements for Adoption by Relatives

Preference to the relative caregiver will be given when the relative meets all relevant child protection standards, and it is in the child’s best interests to be placed with the relative caregiver.

A home study shall be conducted by any child welfare agency licensed under the Child Welfare Agency Licensing Act, § 9-28-401, et seq., or any licensed certified social worker. The home study shall contain an evaluation of the prospective adoption with a recommendation as to the granting of the petition for adoption and shall include:

  • A State-of-residence criminal background check, if available, and national fingerprint-based criminal background check on the adoptive parents and all household members age 18 and older, excluding children in foster care
  • A child maltreatment central registry check for all household members age 10 and older, excluding children in foster care, if such a registry is available in their State of residence

The court may waive the requirement for a home study when a stepparent is the petitioner or the petitioner and the minor are related to each other in the second degree.

Unless directed by the court, a detailed, written health history and genetic and social histories of the child are not required if:

  • The petitioner is a stepparent.
  • The petitioner and the child to be adopted are related to each other within the second degree of kinship.

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

‘Reasonable efforts’ are measures taken to preserve the family and can include reasonable care and diligence on the part of the Department of Human Services or agency to utilize all available services related to meeting the needs of the juvenile and the family.

Reasonable efforts may include the provision of ‘family services,’ which are relevant services provided to a juvenile or his or her family, including, but not limited to:

  • Child care
  • Homemaker services
  • Crisis counseling
  • Cash assistance
  • Transportation
  • Family therapy
  • Physical, psychiatric, or psychological evaluation
  • Counseling or treatment
  • Postadoptive services

Family services are provided in order to:

  • Prevent a juvenile from being removed from a parent, guardian, or custodian
  • Reunite the juvenile with the parent, guardian, or custodian from whom the juvenile has been removed
  • Implement a permanent plan of adoption or guardianship for a juvenile in a dependency-neglect case
  • Rehabilitate a juvenile in a delinquency or family in need of services case
When Reasonable Efforts Are Required

Reasonable efforts shall be made:

  • Before the placement of a child in foster care to prevent the need for removing the child from the child’s home
  • To reunify a family after a child has been placed out of the home to make it possible for the child to return home safely
  • To obtain permanency for a child who has been in placement more than 12 months, or 15 of the previous 22 months
When Reasonable Efforts Are NOT Required

Reasonable efforts to reunite a child with his or her parent or parents shall not be required in all cases. Reunification shall not be required if a court finds by clear and convincing evidence that the parent has:

  • Subjected the child to aggravated circumstances, which may include:
    • A child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.
    • A child has been removed from the custody of the parent or guardian and placed in foster care or in the custody of another person three or more times in the past 15 months.
    • A child or a sibling has been neglected or abused such that the abuse or neglect could endanger the life of the child.
  • Committed or attempted to commit murder or manslaughter of any child
  • Committed felony battery to any child that results in serious bodily injury
  • Had parental rights terminated to a sibling of the child
  • Abandoned an infant
  • Registered with a sex offender registry under the Adam Walsh Child Protection and Safety Act of 2006

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

Any parent who is chronically ill or near death may have a standby guardian appointed by the court.

How to Establish a Standby Guardian

The parent must use the same procedures outlined in the subchapter for establishing a guardianship.

The court shall appoint as guardian the person who is most suitable and is willing to serve, having due regard to:

  • Any request contained in a will or other written instrument executed by the parent
  • Any request for the appointment of a person as his or her guardian made by a minor age 14 or older
How Standby Authority is Activated

The standby guardian’s authority would take effect as outlined in an order of standby guardianship upon:

  • The death of the parent
  • The mental incapacity of the parent
  • The physical debilitation and consent of the parent

The standby guardian shall immediately notify the court upon the death, incapacity, or debilitation of the parent and shall immediately assume the role of guardian of the minor children. The court shall enter an order of guardianship in conformance with this section.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

The parent does not surrender parental rights with the appointment of a standby guardian.

Withdrawing Guardianship

Guardianship is terminated upon a minor’s death, adoption, emancipation, attainment of majority, or by order of the court.

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

CLICK HERE!

CLICK HERE for CPS Statutes & Rules

CLICK HERE for Child Maltreatment Assessment Protocol

 

NEGLECT — Acts or omissions of a parent, guardian, custodian, foster parent, or any person who is entrusted with the juvenile’s care by a parent, custodian, guardian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible under state law for the juvenile’s welfare, but excluding the spouse of a minor and the parents of a married minor, which constitute:

A. Failure or refusal to prevent the abuse of the child when the person knows or has reasonable cause to know the child is or has been abused;

B. Failure or refusal to provide the necessary food, clothing, or shelter, or medical treatment necessary for the child’s well-being, except when the failure or refusal is caused primarily by the financial inability of the person legally responsible and no services for relief have been offered;

C. Failure to take reasonable action to protect the child from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness where the existence of such condition was known or should have been known;

D. Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional, needs of the child, including the failure to provide a shelter that does not pose a risk to the health or safety of the child;

E. Failure to provide for the child’s care and maintenance, proper or necessary support, or medical, surgical, or other necessary care;

F. Failure, although able, to assume responsibility for the care and custody of the child or participate in a plan to assume such responsibility;

G. Failure to appropriately supervise the child that results in the child being left alone at an inappropriate age creating a dangerous situation or a situation that puts the child at risk of harm; or, in inappropriate circumstances creating a dangerous situation or a situation that puts the child at risk of harm;

H. Failure, regardless of whether the parent, guardian, custodian, foster parent, or any person who is entrusted with the child’s care, etc. is present, to appropriately supervise the child that results in the child being placed in inappropriate circumstances creating a dangerous situation or in a situation that puts the child at risk of harm;

I. Failure to ensure a child between 6 and 17 years of age is enrolled in school or is legally being home schooled or as a result of an act or omission by the child’s parent or guardian, the child is habitually and without justification absent from school.

 

ABUSE — Any of the following acts or omissions by a parent, guardian, custodian, foster parent, person 18 years of age or older living in the home with a child whether related or unrelated to the child, or any person who is entrusted with the juvenile’s care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, a significant other of the child’s parent, or any person legally responsible for the juvenile’s welfare, but excluding the spouse of a minor:

A. Extreme or repeated cruelty to a juvenile;

B. Engaging in conduct creating a realistic and serious threat of death, permanent or temporary disfigurement, or impairment of any bodily organ.

C. Injury to a juvenile’s intellectual, emotional or psychological development as evidenced by observable and substantial impairment of the juvenile’s ability to function within the juvenile’s normal range of performance and behavior.

D. Any history that is at variance with the history given.

E. Any non-accidental physical injury.

F. Any of the following intentional or knowing acts, with physical injury and without justifiable cause:

1) Throwing, kicking, burning, biting or cutting a child.

2) Striking a child with a closed fist.

3) Shaking a child.

4) Striking a child on the face or head.

G. Any of the following intentional or knowing acts, with or without injury:

1) Striking a child age six or younger on the face or head.

2) Shaking a child age three or younger.

3) Interfering with a child’s breathing.

4) Pinching or striking a child’s genital area.

NOTE: The prior list of unreasonable actions are considered illustrative and not exclusive.

H. No unreasonable action shall be construed to permit a finding of abuse without having established the elements of abuse.

I. Abuse shall not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes or restraining or correcting the child.

1) The person exercising the restraint is an employee of an agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act;

2) The agency has policy and procedures regarding restraints;

3) No other alternative exists to control the child except for a restraint;

4) The child is in danger of hurting himself or others;

5) The person exercising the restraint has been trained in properly restraining children, de-escalation, and conflict resolution techniques; and

6) The restraint is for a reasonable period of time. Division of Children and Family Services FSPP 387

J. Reasonable and moderate physical discipline inflicted by a parent or guardian shall not include any act that is likely to cause and which does cause injury more serious than transient pain or minor temporary marks.

K. The age, size and condition of the child and the location of the injury and the frequency of recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate.

 

 ARKANSAS HEALTH AND SAFETY FACTORS 8/2013

1) Caretaker’s behavior toward child (ren) is violent or out of control.

2) Caretaker describes or acts towards the child in predominantly negative terms or has extremely unrealistic expectations.

3) Caretaker caused serious physic al injury to the child or made a plausible threat to cause severe physical injury.

4) Caretaker’s explanation for the injury is unconvincing.

5) The family refuses access to the child and there is reason to believe that the family is about to flee, or the child’s whereabouts cannot be ascertained.

6) Caretaker has not, cannot, or will not provide supervision necessary to protect the child from potentially dangerous harm.

7) Caretaker is unwilling or unable to meet the child’s needs for food, clothing, shelter, and/or medical, or mental, health care.

8) Child is fearful of the caretaker, other family members, or other people living in or having access to the home.

9) Child’s physical living conditions are hazardous and immediately threatening, based on the child’s age and developmental status.

10) Child sexual abuse is suspected and circumstances suggest that child safety may be an immediate concern.

11) Caretaker’s current substance use seriously affects his/her ability to supervise, protect, or care for the child.

12) Caretaker fails to protect child (ren) from serious physical or threatened harm.

13) Caretaker’s emotional stability seriously affects current ability to supervise, protect, or care for the child.

14) Caretaker has previously maltreated a child and the severity of the maltreatment or the caretaker’s response to the previous incidents suggest that child safety may be an immediate concern.

 

PROCEDURE II-D11: Protective Custody of Child in Immediate Danger 01/2014

The FSW investigator will: A. Take the child into protective custody for up to 72 hours if:

a) The circumstances present an immediate danger to the child’s health or physical well-being; or,

b) The child is neglected as defined under Garrett’s Law 12-18-103, and the FSW investigator determines that the child and any other children, including siblings, are at substantial risk of serious harm such that the children need to be removed from the custody or care of the parent/legal guardian (see Appendix I: Glossary, for definition of “neglect”); or,

c) Any child who is dependent as defined by the Arkansas Juvenile Code of 1989, 9-27-301 et. seq. (see Appendix I: Glossary, for definition of “dependent”).

B. When a child upon whom a 72-hour hold has been placed is currently located in a school, residential facility, hospital, or similar institution, the FSW will notify the institution. The FSW shall be aware that the institution is obliged to do the following upon receiving notice, in accordance with A.C.A. §12-18-1005:

1) Retain the child until the Division takes a hold on the child;

2) Not notify the parent until the child has been removed by the Division; and,

3) Provide the parent or guardian with the name and contact information of the Division employee regarding the hold on the child.

C. Notify the OCC attorney immediately that protective custody was exercised and request an ex parte emergency order from the court.

D. If a minor child’s safety is a concern, contact OCC immediately to request that DCFS petition the court for an order of less than custody. Thoroughly review the Health and Safety Checklist and Investigation Risk Assessment and ensure that a protection plan is in place for a child before leaving a child in a home where an order of protection has been filed or DCFS has petitioned the court for an order of less than custody.

E. Determine whether to recommend to the court that reunification services should or should not be provided to reunite the child with his family (see Policy VI-A).

F. Determine whether the grandparents have the right to notice and right to be heard. In a child custody or dependency-neglect case, grandparents have this right if all the following conditions are present (“Grandparent does not mean a parent of a putative father of a child for the purpose of this determination):

1) The grandchild resided with the grandparent for at least six consecutive months prior to the child’s first birthday or lived with the grandparent for at least one continuous year regardless of age; Division of Children and Family Services FSPP 57

2) The grandparent was the primary financial caregiver during the time the child resided with the grandparent; and,

3) The continuous custody occurred within one year of the initiation of the custody proceeding.

G. Provide the OCC attorney with the name and address of any grandparent who is entitled to notice based on the above conditions.

H. Prepare an affidavit immediately and submit it to the OCC attorney (CACD shall prepare affidavits containing facts obtained during the course of their child maltreatment investigation).

I. Arrange for a physician to examine the child thoroughly within 24 hours of removal for allegations of severe maltreatment under A.C.A. 12-18-602 or if the allegation is that a child has been subjected to neglect as defined in A.C.A. 12-18-103(13)(B) (Garrett’s Law) and arrange for a physician to examine the child thoroughly within 72 hours of removal for all other children who enter the custody of DHS.

1) The FSW or Health Services Specialist (HSS) must sign the consent for treatment prior to the child receiving medical and dental services during protective custody. The FSW or HSS may:

a) Go to the medical or dental office where treatment is to be provided and sign the consent for treatment forms; or,

b) Have the form faxed, sign the form, and fax it back to the service provider; or,

c) If the provider allows phone consent, they may provide consent via the telephone. This should be completed prior to the foster parent accompanying the child for treatment. In emergency situations, the on-call FSW will be available to sign for medical or dental treatment.

J. Place the child in an appropriate licensed or approved placement.

K. If a provisional placement will be pursued:

1) Notify the area Resource Worker Supervisor by email within twenty-four hours of removal that children have been removed and a potential provisional placement has been identified.

a) In the notification email provide the area Resource Worker Supervisor with:

i. Names and ages of the children who have been removed;

ii. Name(s)of potential provisional placement;

iii. Relationship of potential provisional placement to children;

iv. Contact information for potential provisional placement;

v. Any other information collected regarding potential provisional placement (see CFS- 450: Prospective Provisional Foster Parent Information and Questionnaire for more information).

2) Interview the child(ren), if age appropriate, to assess how the child may feel about placement with a specific relative.

3) See Policy VI-B: Consideration of Relatives for Children in Foster Care for further information on provisional placements. L. Complete and route CFS-323: Protective Custody/Parental Notification.

M. Open an Out-of-Home Placement case within twenty-four hours, excluding weekends and holidays.

N. Return the child to the legal custodian if the emergency necessitating protective custody passes or if the judge does not grant custody to the Department. Protective custody cannot be extended.

O. Complete the CFS-336: Expiration of Protective Custody/Parental Notification and provide to the parent.

P. If the parent refuses to accept custody of the child, file an emergency petition.

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

CLICK HERE!

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

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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

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5th Circuit

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7th Circuit

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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

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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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4th Circuit

5th Circuit

6th Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

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

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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

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3rd Circuit

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

8th Circuit

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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

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11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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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

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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)

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11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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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).

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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

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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

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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).

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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)

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9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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