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

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.

California

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Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: A child is considered a witness of domestic violence when the person who commits or attempts to commit a violation of §§ 243.4 [sexual battery], 245 [assault with a deadly weapon], or 273.5 [infliction of injury on a present or former spouse], is or has been a member of the household of the child or the victim of the offense, is a marital or blood relative of the child or the victim, or the offender or the victim is the natural parent, adoptive parent, stepparent, or foster parent of the child, and the offense contemporaneously occurred in the presence of, or was witnessed by, the child.

Consequences

Such circumstances shall be considered a circumstance in aggravation of the crime in imposing a term under § 1170(b).

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

A child may be considered dependent (and subject to supervision by the Department of Social Services) when:

  • The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm.
  • The child is younger than age 5 and has suffered severe physical abuse by a parent or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.
  • The child’s parent or guardian caused the death of another child through abuse or neglect.
  • The child has been subjected to an act or acts of cruelty by the parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from an act or acts of cruelty when the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty.

For the purposes of this subdivision, ‘severe physical abuse’ means:

  • Any single act of abuse that causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death
  • Any single act of sexual abuse that causes significant bleeding, deep bruising, or significant external or internal swelling
  • More than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness
  • The willful, prolonged failure to provide adequate food
Neglect

A child may be considered dependent when:

  • The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of:
    • The failure or inability of the parent or guardian to adequately supervise or protect the child
    • The willful or negligent failure of the parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left
    • The willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment
    • The inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse
  • The child’s sibling has been abused or neglected, and there is a substantial risk that the child will be abused or neglected. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.
Sexual Abuse/Exploitation

A child is considered dependent if he or she has been sexually abused; there is a substantial risk that the child will be sexually abused, as defined in § 11165.1 of the Penal Code, by his or her parent, guardian, or a household member; or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.

The Legislature finds and declares that a child who is sexually trafficked, as described in § 236.1 of the Penal Code, or who receives food or shelter in exchange for or who is paid to perform, sexual acts, and whose parent or guardian failed to, or was unable to, protect the child, is within the description of this subdivision, and that these children shall be known as commercially sexually exploited children.

‘Sexual abuse’ means sexual assault or sexual exploitation as defined below:

  • ‘Sexual assault’ includes rape, incest, sodomy, lewd or lascivious acts upon a child, or child molestation.
  • ‘Sexual exploitation’ refers to any of the following:
    • Depicting a minor engaged in obscene acts; preparing, selling, or distributing obscene matter that depicts minors; employing a minor to perform obscene acts
    • Knowingly permitting or encouraging a child to engage in, or assisting others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction involving obscene sexual conduct
    • Depicting a child in, or knowingly developing, duplicating, printing, or exchanging any film, photograph, videotape, negative, or slide in which a child is engaged in an act of obscene sexual conduct
Emotional Abuse

A child is considered dependent if he or she is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others; as a result of the conduct of the parent or guardian; or who has no parent or guardian capable of providing appropriate care. No child shall be found to be a dependent person if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.

Abandonment

Citation: Welf. & Inst. Code § 300
A child is considered dependent when:

  • The child has been left without any provision for support.
  • Physical custody of the child has been voluntarily surrendered pursuant to § 1255.7 of the Health and Safety Code, and the child has not been reclaimed within the 14-day period specified in subdivision (e) of that section.
  • The child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child.
  • A relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.
  • The child has been freed for adoption by one or both parents for 12 months by either relinquishment or termination of parental rights, or an adoption petition has not been granted.

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Standards for Reporting

Citation: Penal Code § 11166
A mandatory reporter shall make a report whenever he or she, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.

The term ‘reasonable suspicion’ means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. ‘Reasonable suspicion’ does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any ‘reasonable suspicion’ is sufficient.

Persons Responsible for the Child

A person responsible for a child’s welfare includes the child’s parent or guardian. As used in this section, ‘guardian’ means the legal guardian of the child.

Exceptions

Serious physical harm does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.

No child shall be found to be dependent solely due to the lack of an emergency shelter for the family.

A physical disability, such as blindness or deafness, is not considered a bar to raising happy and well-adjusted children unless a parent’s disability prevents him or her from exercising care and control.

A child whose parent has been adjudged a dependent child shall not be considered to be at risk of abuse or neglect solely because of the age, dependent status, or foster care status of the parent.

In any case in which a child is alleged to be dependent on the basis that he or she is in need of medical care, the court, in making that finding, shall give consideration to any treatment being provided to the child by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner thereof.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

For purposes of this act, ‘abuse’ means any of the following:

  • Intentionally or recklessly causing or attempting to cause bodily injury
  • Sexual assault
  • Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another
  • Engaging in any behavior that has been or could be enjoined pursuant to § 6320

The court may issue an ex parte order enjoining a party from molesting; attacking; striking; stalking; threatening; sexually assaulting; battering; harassing; telephoning, including, but not limited to, making annoying telephone calls as described in § 653m of the Penal Code; destroying personal property; contacting, either directly or indirectly, by mail or otherwise; coming within a specified distance of; or disturbing the peace of the other party; and, in the discretion of the court, on a showing of good cause, of other named family or household members.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child is guilty of a felony.

As used in this section, the term ‘traumatic condition’ means a condition of the body, such as a wound or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, ‘strangulation’ and ‘suffocation’ include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.

Persons Included in the Definition

In civil law: ‘Domestic violence’ is abuse perpetrated against any of the following persons:

  • A spouse or former spouse
  • A cohabitant or former cohabitant, as defined in § 6209
  • A person with whom the respondent is having or has had a dating or engagement relationship
  • A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act
  • A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected
  • Any other person related by consanguinity or affinity within the second degree

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

No mandated reporter shall be civilly or criminally liable for any eport required or authorized by this article, and this immunity shall apply even if the mandated reporter acquired the knowledge or reasonable suspicion of child abuse or neglect outside of his or her professional capacity or outside the scope of his or her employment. Any other person reporting a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of any report authorized by this article, unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report, and any person who makes a report of child abuse or neglect known to be false, or with reckless disregard of the truth or falsity of the report, is liable for any damages caused. No person required to make a report pursuant to this article, nor any person taking photographs at his or her direction, shall incur any civil or criminal liability for taking photographs of a suspected victim of child abuse or neglect, or causing photographs to be taken of a suspected victim of child abuse or neglect, without parental consent, or for disseminating the photographs, images, or material with the reports required by this article. However, this section shall not be construed to grant immunity from this liability with respect to any other use of the photographs.

Any person who, pursuant to a request from a government agency investigating a report of suspected child abuse or neglect, provides the requesting agency with access to the victim of a known or suspected instance of child abuse or neglect shall not incur civil or criminal liability as a result of providing that access.

Any commercial computer technician, and any employer of any commercial computer technician, who, pursuant to a warrant from a law enforcement agency investigating a report of suspected child abuse or neglect, provides the law enforcement agency with a computer or computer component that contains possible evidence of a known or suspected instance of child abuse or neglect, shall not incur civil or criminal liability as a result of providing that computer or computer component to the law enforcement agency.

The legislature finds that even though it has provided immunity from liability to persons required or authorized to make reports pursuant to this article, that immunity does not eliminate the possibility that actions may be brought against those persons based upon required or authorized reports. In order to further limit the financial hardship that those persons may incur as a result of fulfilling their legal responsibilities, it is necessary that they not be unfairly burdened by legal fees incurred in defending those actions. Therefore, a mandated reporter may present a claim to the California Victim Compensation and Government Claims Board for reasonable attorney’s fees and costs incurred in any action against that person on the basis of making a report required or authorized by this article, if the court has dismissed the action upon a demurrer or motion for summary judgment made by that person, or, if he or she prevails in the action. The California Victim Compensation and Government Claims Board shall allow that claim if the requirements of this subdivision are met, and the claim shall be paid from an appropriation to be made for that purpose. Attorney’s fees awarded pursuant to this section shall not exceed an hourly rate greater than the rate charged by the Attorney General of the State of California at the time the award is made and shall not exceed an aggregate amount of $50,000.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who knows or reasonably suspects that a child has been a victim of abuse or neglect shall make an initial report immediately by telephone and prepare and send, fax, or electronically transmit a follow-up written report within 36 hours.

Any commercial film and photographic print processor who has knowledge of or observes any film, photograph, videotape, negative, or slide depicting a child under age 16 engaged in an act of sexual conduct shall report the instance of suspected child abuse to the law enforcement agency immediately, or as soon as practicably possible, by telephone and shall prepare and send, fax, or electronically submit a written report of it with a copy of the film, photograph, videotape, negative, or slide attached within 36 hours.

Content of Reports

Reports of suspected child abuse or neglect shall include:

  • The name, business address, and telephone number of the mandated reporter
  • The capacity that makes the person a mandated reporter
  • The information that gave rise to the reasonable suspicion of child abuse or neglect and the source or sources of that information

If a report is made, the following information, if known, also shall be included in the report:

  • The child’s name, address, present location, and, if applicable, school, grade, and class
  • The names, addresses, and telephone numbers of the child’s parents or guardians
  • The name, address, telephone number, and other relevant personal information about the person or persons who might have abused or neglected the child

The mandated reporter shall make a report even if some of this information is not known or is uncertain to him or her.

Reporting Suspicious Deaths

The agency shall be notified and a report prepared and sent, faxed, or electronically submitted even if the child has died, regardless of whether or not the possible abuse was a contributing factor to the death, and even if suspected child abuse was discovered during an autopsy.

The agency shall notify within 24 hours the licensing office that has jurisdiction over a facility when a child has died while living at or enrolled in that facility.

Reporting Substance-Exposed Infants

A positive toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for reporting child abuse or neglect. However, any indication of maternal substance abuse shall lead to an assessment of the needs of the mother and child pursuant to § 123605 of the Health and Safety Code. If other factors are present that indicate risk to a child, then a report shall be made.

A report based on risk to a child that relates solely to the inability of the parent to provide the child with regular care due to the parent’s substance abuse shall be made only to a county welfare or probation department and not to a law enforcement agency.

Agency Receiving the Reports

Reports of suspected child abuse or neglect shall be made by mandated reporters, or in the case of reports of a child suffering from severe emotional damage [pursuant to § 11166.05], may be made, to any police department or sheriff’s department, not including a school district police or security department; county probation department, if designated by the county to receive mandated reports; or the county welfare department. Any of those agencies shall accept a report of suspected child abuse or neglect whether offered by a mandated reporter or another person, or referred by another agency, even if the agency to whom the report is being made lacks subject matter or geographical jurisdiction to investigate the reported case, unless the agency can immediately electronically transfer the call to an agency with proper jurisdiction.

When an agency takes a report about a case of suspected child abuse or neglect in which that agency lacks jurisdiction, the agency shall immediately refer the case by telephone, fax, or electronic transmission to an agency with proper jurisdiction. Agencies that are required to receive reports of suspected child abuse or neglect may not refuse to accept a report of suspected child abuse or neglect from a mandated reporter or another person unless otherwise authorized pursuant to this section and shall maintain a record of all reports received.

Initial Screening Decisions

An immediate in-person response shall be made by a county welfare department social worker in emergency situations. An in-person response is not required when the county welfare department, based upon an evaluation of risk, determines that an in-person response is not appropriate. An evaluation of risk includes collateral contacts, a review of previous referrals, and other relevant information.

In regulation: The decision whether or not an in-person investigation is needed shall include the following:

  • The social worker has been able to locate the child and/or the family.
  • There exists an open case and the problem is being adequately addressed.
  • The allegation meets the legal definition of abuse, neglect, or exploitation.
  • The caregiver of the child is the alleged perpetrator or was negligent in allowing, or unable to prevent, access to the child.
  • The allegation includes specific acts and/or behavioral indicators that are suggestive of abuse, neglect, or exploitation.
  • There is additional information from collateral contacts or records review that invalidates the reported allegation.
  • There are previously investigated unsubstantiated or unfounded reports from the same reporter with no new allegations or risk factors.
Agency Conducting the Assessment/Investigation

Any child reported to the county welfare department as endangered by abuse, neglect, or exploitation shall be eligible for initial intake and evaluation of risk services. Each county welfare department shall maintain and operate a 24-hour response system.

Assessment/Investigation Procedures

At the time of the initial contact with the individual who is subject to the investigation, the agency shall advise the individual of the complaints or allegations against him or her in a manner that is consistent with laws protecting the identity of the reporter.

In regulation: The social worker initially investigating a referral shall determine the potential for or the existence of any conditions that place the child or any other child in the household at risk and in need of services. The social worker shall have in-person contact with all of the children alleged to be abused, neglected, or exploited, and at least one adult who has information regarding the allegations. If as a result of the investigation the social worker determines that the referral is unfounded, the social worker shall document the determination in the case record.

If as a result of the investigation the social worker does not find the referral to be unfounded, he or she shall:

  • Conduct an in-person investigation with:
    • All children present at the time of the initial in-person investigation
    • All parents who have access to the children alleged to be at risk of abuse, neglect, or exploitation
  • Make necessary collateral contacts with persons having knowledge of the condition of the children

A noncustodial parent shall be considered to have access if he or she has regular or frequent in-person contact with the children.

Timeframes for Completing Investigations

If the social worker determines that an in-person investigation is necessary, he or she shall initiate the investigation immediately or within 10 calendar days, as appropriate. An immediate investigation is required when:

  • There is evidence that the child is in imminent danger of physical pain, injury, disability, severe emotional harm, or death.
  • The law enforcement agency making the referral states that the child is at immediate risk of abuse, neglect, or exploitation.
  • The social worker determines that the child referred by the law enforcement agency is at immediate risk of abuse, neglect, or exploitation.
Classification of Reports

Reports may be classified as follows:

  • A report is unfounded when it is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect.
  • A report is substantiated when it is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in § 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect occurred. A substantiated report shall not include a report where the investigator who conducted the investigation found the report to be false, inherently improbable, to involve an accidental injury, or to not constitute child abuse or neglect.
  • A report is inconclusive when it is determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect has occurred.

Parental Drug Use as Child Abuse

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Current Through April 2015

A positive toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for reporting child abuse or neglect. However, any indication of maternal substance abuse shall lead to an assessment of the needs of the mother and child pursuant to law.

If other factors are present that indicate risk to a child, then a report shall be made. However, a report based on risk to a child that relates solely to the inability of the parent to provide the child with regular care due to the parent’s substance abuse shall be made only to a county welfare or probation department and not to a law enforcement agency.

Except as provided below, any person convicted of a violation of §11379.6(a) [manufacture of a controlled substance] or §11383 [possession of the chemicals or equipment used for such manufacture], or of an attempt to violate those sections, as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the crime occurs in a structure where any child under age 16 is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of 2 years in the State prison.

Any person convicted of a violation of § 11379.6(a) or § 11383, or of an attempt to violate those sections, as those sections relate to methamphetamine or phencyclidine, when the commission of the crime causes any child under age 16 to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of 5 years in the State prison.

As used in this section, ‘structure’ means any house, apartment building, shop, warehouse, barn, building, vessel, railroad car, cargo container, motor vehicle, housecar, trailer, trailer coach, camper, mine, floating home, or other enclosed structure capable of holding a child and manufacturing equipment.

Any child who comes within the following description is within the jurisdiction of the juvenile court which may adjudge that child to be a dependent child of the court: The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.

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Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

If a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent unless the court finds that he or she would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding.

The Judicial Council shall adopt a rule of court effective July 1, 2001, that complies with the requirement of the Federal Child Abuse Prevention and Treatment Act (CAPTA, P.L. 93-247) for the appointment of a guardian ad litem (GAL) for a child in cases in which a petition is filed based upon neglect or abuse of the child or in which a prosecution is initiated under the Penal Code arising from neglect or abuse of the child.

Appointment of a GAL shall not be required for a minor who is a parent of the child who is the subject of the dependency petition unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.

In court rules: The court must appoint counsel for a child who is the subject of a petition under § 300 and who is unrepresented by counsel unless the court finds that the child would not benefit from the appointment of counsel.

In order to find that a child would not benefit from the appointment of counsel, the court must find all of the following:

  • The child understands the nature of the proceedings.
  • The child is able to communicate and advocate effectively with the court, other counsel, other parties, including social workers and other professionals involved in the case.
  • Under the circumstances of the case, the child would not gain any benefit by being represented by counsel.

If the court finds that the child would not benefit from representation by counsel, the court must appoint a court-appointed special advocate (CASA) volunteer for the child, to serve as the CAPTA GAL, as required in § 326.5.

The Use of Court-Appointed Special Advocates (CASAs)

The rule of court may include guidelines to the courts for determining when an attorney should be appointed rather than a CASA, and caseload standards for GALs.

A child advocate appointed by the court to represent the interests of a dependent child shall have the same duties and responsibilities as a GAL and shall be trained by and function under the auspices of a CASA/GAL program, formed and operating under the guidelines established by the National Court Appointed Special Advocate Association.

A CASA may be appointed in juvenile dependency proceedings, including proceedings involving a nonminor dependent.

A judge may appoint a CASA when, in the opinion of the judge, a child requires services that can be provided by the CASA consistent with the local rules of court.

To accomplish the appointment of a CASA, the judge making the appointment shall sign an order that may grant the CASA the authority to review specific relevant documents and interview parties involved in the case, as well as other persons having significant information relating to the child, to the same extent as any other officer of the court appointed to investigate proceedings on behalf of the court.

Qualifications/Training

The Judicial Council shall require an initial and ongoing training program to all persons acting as a CASA, including, but not limited to, the following:

  • Dynamics of child abuse and neglect
  • Court structure, including juvenile court laws regarding dependency
  • Social service systems
  • Child development
  • Cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth
  • Interview techniques
  • Report writing
  • Roles and responsibilities of a CASA
  • Rules of evidence and discovery procedures
  • Problems associated with verifying reports

The Judicial Council, through its CASA Advisory Committee, shall adopt guidelines for screening CASA volunteers that shall include personal interviews, reference checks, checks for records of sex offenses and other criminal records, information from the Department of Motor Vehicles, and other information the Judicial Council deems appropriate.

Persons acting as CASAs shall be individuals who have demonstrated an interest in children and their welfare. Each CASA shall participate in ongoing training and supervision throughout his or her involvement in the program. Each CASA shall be evaluated before and after initial training to determine his or her fitness for these responsibilities. Ongoing training shall be provided at least monthly.

Each CASA shall commit a minimum of 1 year of service to a child until a permanent placement is achieved for the child or until relieved by the court, whichever is first. At the end of each year of service, the CASA, with the approval of the court, may recommit for an additional year.

A CASA shall have no associations that create a conflict of interest with his or her duties as a CASA.

In court rules: ‘Competent counsel’ means an attorney who is a member in good standing of the State Bar of California, who has participated in training in the law of juvenile dependency, and who demonstrates adequate forensic skills, knowledge, and comprehension of the statutory scheme, the purposes and goals of dependency proceedings, the specific statutes, rules of court, and cases relevant to such proceedings, and procedures for filing petitions for extraordinary writs.

Only those attorneys who have completed a minimum of 8 hours of training or education in the area of juvenile dependency, or who have sufficient recent experience in dependency proceedings in which the attorney has demonstrated competency, may be appointed to represent parties. In addition to a summary of dependency law and related statutes and cases, training and education for attorneys must include information on child development, child abuse and neglect, substance abuse, domestic violence, family reunification and preservation, and reasonable efforts. Within every 3 years attorneys must complete at least 8 hours of continuing education related to dependency proceedings.

Specific Duties

A CASA shall do all of the following in the cases to which he or she is appointed:

  • Provide independent, factual information to the court
  • Represent the best interests of the children involved and consider the best interests of the family
  • At the request of the judge, monitor cases to ensure that the court’s orders have been fulfilled

The court shall determine the extent of the CASA’s duties in each case. These duties may include an independent investigation of the circumstances surrounding a case to which he or she has been appointed, interviewing and observing the child and other appropriate individuals, and the reviewing of appropriate records and reports.

The CASA shall report the results of the investigation to the court, follow the direction and orders of the court, and provide information specifically requested by the court.

The counsel for the child shall be charged in general with the representation of the child’s interests. To that end, the counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including interviewing witnesses, and he or she shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. Counsel may also introduce and examine his or her own witnesses, make recommendations to the court concerning the child’s welfare, and participate further in the proceedings to the degree necessary to adequately represent the child. When counsel is appointed to represent a nonminor dependent, counsel is charged with representing the wishes of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent. If the court finds that a nonminor dependent is not competent to direct counsel, the court shall appoint a GAL for the nonminor dependent.

If the child is age 4 or older, counsel shall interview the child to determine the child’s wishes and to assess the child’s well-being and shall advise the court of the child’s wishes.

How the Representative Is Compensated

In a county of the third class, if counsel is to be provided to a child at the county’s expense other than by counsel for the agency, the court shall first use the services of the public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the public defender after making a finding of good cause and stating the reasons therefor on the record.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A written case plan shall be completed within a maximum of 60 days of the initial removal of the child, or of the inperson response required under § 16501(f) if the child has not been removed from his or her home, or by the date of the dispositional hearing, whichever occurs first.

The case plan shall be updated as the service needs of the child and family dictate. At a minimum, the case plan shall be updated in conjunction with each status review hearing conducted pursuant to §§ 364, 366, 366.3, and 366.31, and the hearing conducted pursuant to § 366.26, but no less frequently than once every 6 months. Each updated case plan shall include a description of the services that have been provided to the child under the plan and an evaluation of the appropriateness and effectiveness of those services.

Who May Participate in the Case Planning Process

Parents and legal guardians shall have an opportunity to review the case plan, sign it whenever possible, and then shall receive a copy of the plan. In any voluntary service or placement agreement, the parents or legal guardians shall be required to review and sign the case plan. Whenever possible, parents and legal guardians shall participate in the development of the case plan.

Commencing January 1, 2012, for nonminor dependents who are receiving foster care assistance up to age 21 pursuant to § 11403, the transitional independent living case plan, as set forth in subdivision (y) of § 11400, shall be developed with, and signed by, the nonminor.

A child shall be given a meaningful opportunity to participate in the development of the case plan and state his or her preference for foster care placement. A child who is age 12 or older and in a permanent placement shall also be given the opportunity to review the case plan, sign the case plan, and receive a copy.

Contents of a Case Plan

The case plan shall include:

  • An assessment of the circumstances that required child welfare intervention
  • Specific goals and the appropriateness of the planned services in meeting those goals
  • The allegations of abuse or neglect or the conditions cited as the basis for declaring the child a dependent of the court
  • The schedule of the social worker contacts with the child and the family or other caregivers
  • When out-of-home services are used, the frequency of contact between the parents or legal guardians and the child
  • When out-of-home placement is made, the provisions for the development and maintenance of sibling relationships
  • If out-of-home placement is made in a foster family home, group home, or other child care institution that is either a substantial distance from the home of the child’s parent or out of State, the reasons why that placement is in the best interests of the child
  • An assurance that the plan ensures the educational stability of the child while in foster care, including:
    • An assurance that the placement takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement
    • An assurance that the placement agency has coordinated with the person holding the right to make educational decisions for the child and appropriate local educational agencies to ensure that the child remains in the same school or, if remaining in that school is not in the child’s best interests, assurances that steps are taken to provide immediate and appropriate enrollment in a new school and to provide all of the child’s educational records to the new school
  • If out-of-home services are used, or if parental rights have been terminated and the case plan is placement for adoption, a recommendation regarding the appropriateness of unsupervised visitation between the child and any of the child’s siblings
  • If out-of-home services are used and the goal is reunification, a description of the services to be provided to assist in reunification and the services to be provided concurrently to achieve legal permanency if efforts to reunify fail
  • If out-of-home services are used, the child has been in care for at least 12 months, and the goal is not adoptive placement, documentation of the compelling reason or reasons why termination of parental rights is not in the child’s best interests
  • If the case plan has as its goal for the child a permanent plan of adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child; to place the child with an adoptive family, an appropriate and willing relative, a legal guardian, or in another planned permanent living arrangement; and to finalize the adoption or legal guardianship
  • When appropriate, for a child who is age 16 or older, the transitional independent living plan, which is a written description of the programs and services that will help the child, consistent with the child’s best interests, prepare for the transition from foster care to independent living
  • For youth age 16 or older, documentation that a consumer credit report was requested annually from each of the three major credit reporting agencies at no charge to the youth and that any results were provided to the youth
  • When a child who is age 10 or older has been in out-of-home placement in a group home for 6 months or longer, an identification of individuals, other than the child’s siblings, who are important to the child and actions necessary to maintain the child’s relationship with those individuals, provided that those relationships are in the best interests of the child

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A review hearing shall be held 6 months after the initial dispositional hearing, but no later than 12 months after the child has entered foster care.

A permanency hearing shall be held 12 months after the child has entered foster care. The court may continue the case for up to 6 months, provided that:

  • The hearing shall occur within 18 months of the date that the child was originally taken from the physical custody of his or her parent or legal guardian.
  • The court finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian.

A permanency hearing shall be held within 120 days if:

  • The child is younger than age 3 or part of a sibling group.
  • The whereabouts of the parents are unknown.
  • The court finds that the parent has failed to make substantive progress on a court-ordered treatment plan.
  • The parent has been convicted of a felony indicating parental unfitness.
Persons Entitled to Attend Hearings

The following shall be present at the hearings:

  • The social worker
  • Counsel for the child
  • A court-appointed child advocate
  • The parent or legal guardian

When a child has been in the physical custody of a foster parent, a relative caregiver, or a certified foster parent who has been approved for adoption, the foster parent, relative caregiver, or the certified foster parent may file with the court a report containing his or her recommendation for disposition. The court shall consider the report and recommendation prior to determining any disposition.

Determinations Made at Hearings

At the hearing, the court shall consider:

  • The criminal history of the parent subsequent to the child’s removal to the extent that the criminal record is substantially related to the welfare of the child or the parent’s ability to exercise custody and control regarding his or her child
  • Whether reasonable services that were designed to aid the parent to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian
  • Whether the child can be returned to the custody of his or her parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent
  • The efforts or progress, or both, demonstrated by the parent and the extent to which he or she availed himself or herself of services provided, taking into account the particular barriers to a minor; dependent nonminor; or incarcerated, institutionalized, detained, or deported parent’s access to those court-mandated services and ability to maintain contact with his or her child

For each youth age 16 or older, the court shall determine whether services have been made available to assist him or her in making the transition from foster care to independent living.

If the court orders that a child who is age 10 or older remain in long-term foster care, the court shall determine whether the agency has made reasonable efforts to maintain the child’s relationships with individuals other than the child’s siblings who are important to the child, consistent with the child’s best interests, and may make any appropriate order to ensure that those relationships are maintained.

If the child had been placed under court supervision with a previously noncustodial parent, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent.

Permanency Options

At the permanency hearing, the court shall determine the permanent plan for the child, which shall include a determination of whether the child will be returned to the child’s home and, if so, when. The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.

For each youth age 16 or older, the court shall also determine whether services have been made available to assist him or her in making the transition from foster care to independent living.

If the court determines that the child cannot be returned to his or her parent, a hearing will be held as directed by § 366.26. At this hearing, the court shall make findings and orders in the following order of preference:

  • Terminate the rights of the parent or parents, and order that the child be placed for adoption
  • Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child
  • Identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within 180 days
  • Appoint a nonrelative legal guardian for the child and order that letters of guardianship be issued
  • Order that the child be placed in long-term foster care, subject to the periodic review of the juvenile court

Determining the Best Interests of the Child

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Current Through March 2016

It is the intent of the legislature to preserve and strengthen a child’s family ties whenever possible, removing the child from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If a child is removed from the physical custody of his or her parents, preferential consideration shall be given whenever possible to the placement of the child with the relative as required by law. If the child is removed from his or her own family, it is the purpose of this chapter to secure as nearly as possible for the child the custody, care, and discipline equivalent to that which should have been given to the child by his or her parents. It is further the intent of the Legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive family setting promoting normal childhood experiences that is suited to meet the child’s or youth’s individual needs, and to live as close to the child’s family as possible. Family reunification services shall be provided for expeditious reunification of the child with his or her family, as required by law. If reunification is not possible or likely, a permanent alternative shall be developed.

In all Indian child custody proceedings the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian Tribes and families, comply with the Federal Indian Child Welfare Act, and seek to protect the best interests of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act.

The legislature finds and declares the following:

There is no resource that is more vital to the continued existence and integrity of recognized Indian Tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian Tribe. The State is committed to protecting the essential Tribal relations and best interests of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.) and other applicable law, designed to prevent the child’s involuntary out-of-home placement and, whenever the placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child’s Tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child’s Tribe and Tribal community.

It is in the interests of an Indian child that the child’s membership in the child’s Indian Tribe and connection to the Tribal community be encouraged and protected, regardless of any of the following:

  • Whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding
  • Whether the parental rights of the child’s parents have been terminated
  • Where the child has resided or been domiciled

It is further the intent of the legislature that all children live with a committed, permanent, and nurturing family. Services and supports should be tailored to meet the needs of the individual child and family being served, with the ultimate goal of maintaining the family, or when this is not possible, transitioning the child or youth to a permanent family or preparing the child or youth for a successful transition into adulthood. When needed, short-term residential treatment center program services are a short-term, specialized, and intensive intervention that is just one part of a continuum of care available for children, youth, young adults, and their families.

It is further the intent of the legislature to ensure that all pupils in foster care and those who are homeless as defined by the Federal McKinney-Vento Homeless Assistance Act have the opportunity to meet the challenging State pupil academic achievement standards to which all pupils are held. In fulfilling their responsibilities to pupils in foster care, educators, county placing agencies, care providers, advocates, and the juvenile courts shall work together to maintain stable school placements; ensure that each pupil is placed in the least restrictive educational programs; and has access to the academic resources, services, and extracurricular and enrichment activities that are available to all pupils. In all instances, educational and school placement decisions must be based on the best interests of the child.

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Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, any of the following:

  • The whereabouts of the parent is unknown.
  • The parent is suffering from a mental disability that renders him or her incapable of utilizing those services.
  • The child or a sibling of the child had been removed from the custody of his or her parent as a result of an adjudication of dependency due to physical or sexual abuse, the child had been returned to the custody of the parent, and the child is being removed again due to additional physical or sexual abuse.
  • The parent has caused the death of another child through abuse or neglect.
  • The parent has subjected the child under age 5 to severe physical abuse.
  • The child has been adjudicated a dependent as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half-sibling by a parent, and the court finds that it would not benefit the child to pursue reunification services with the offending parent or guardian.
  • The parent or guardian has been required by the court to be registered on a sex offender registry.

Any of the following circumstances shall constitute a sufficient basis for termination of parental rights:

  • A court finds that reunification services shall not be offered.
  • The whereabouts of a parent have been unknown for 6 months.
  • The parent has failed to visit or contact the child for 6 months.
  • The parent has been convicted of a felony indicating parental unfitness.
  • The court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services.
Circumstances That Are Exceptions to Termination of Parental Rights

Parental rights shall not be terminated if:

  • The child is living with a relative who is unable or unwilling to adopt the child.
  • The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
    • The parents have maintained regular visitation and contact with the child.
    • A child age 12 or older objects to the termination.
    • The child is placed in a residential treatment facility and adoption is unlikely or undesirable.
    • The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances.
    • There would be substantial interference with a child’s sibling relationship.
    • The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interests of the child, including, but not limited to:
      • Termination would substantially interfere with the child’s connection to his or her Tribal community or Tribal membership rights.
      • The child’s Tribe has identified guardianship, long-term foster care with a fit and willing relative, Tribal customary adoption, or another planned permanent living arrangement for the child.
      • The child is a nonminor dependent, and the nonminor and the nonminor’s Tribe have identified Tribal customary adoption for the nonminor.

The court shall not terminate parental rights if the court has found that reasonable efforts were not made or that reasonable services were not offered or provided. In the case of an Indian child:

  • The court has found that active efforts were not made.
  • The court has not found, beyond a reasonable doubt, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
  • The court has ordered Tribal customary adoption.
Circumstances Allowing Reinstatement of Parental Rights

A child who has not been adopted for at least 3 years after the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the court to reinstate parental rights. The child may file the petition prior to the expiration of this 3-year period if the State Department of Social Services, county adoption agency, or licensed adoption agency that is responsible for custody and supervision of the child and the child stipulate that the child is no longer likely to be adopted.

A child over age 12 shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held and shall give prior notice to the social worker or probation officer, the child’s attorney, and the child’s Tribe, if applicable. The court shall order the child or the social worker or probation officer to give prior notice of the hearing to the child’s former parent or parents.

The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child’s best interests. If the court reinstates parental rights over a child who is younger than age 12 and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interests of the child to reinstate parental rights.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A child who is 72 hours old or younger may be relinquished.

Who May Relinquish the Infant

The child may be relinquished by his or her parent or other person having lawful custody.

Who May Receive the Infant

A child may be left at a safe-surrender site that includes:

  • A location designated by the board of supervisors of a county or by a local fire agency, upon the approval of the appropriate local governing body of the agency, to be responsible for accepting physical custody of a child
  • A location within a public or private hospital that is designated by that hospital to be a safe-surrender site

Before designating a location as a safe-surrender site, the designating entity shall consult with the governing body of a city, if the site is within the city limits, and with representatives of a fire department and a child welfare agency that may provide services to a child who is surrendered at the site, if that location is selected.

A hospital and a safe-surrender site designated by the county board of supervisors or by a local fire agency, upon the approval of the appropriate local governing body of the agency, shall post a sign displaying a statewide logo that has been adopted by the State Department of Social Services that notifies the public of the location where a child may be safely surrendered.

Responsibilities of the Safe Haven Provider

Personnel at a safe-surrender site shall accept physical custody of the child and ensure that a qualified person does all of the following:

  • Places a coded, confidential ankle bracelet on the child
  • Offers the parent a copy of the ankle bracelet identification in order to facilitate reclaiming the child
  • Offers the parent a medical information questionnaire, which may be declined or may be voluntarily filled out and returned at the time the child is surrendered or later filled out and mailed

Personnel of a safe-surrender site that has physical custody of a minor child shall ensure that a medical screening examination and any necessary medical care are provided to the minor child.

Notwithstanding any other provision of law, the consent of the parent or other relative shall not be required to provide medical care to the minor child.

As soon as possible, but not later than 48 hours after the physical custody of a child has been accepted, personnel of the safe-surrender site that has physical custody of the child shall notify child protective services or a county agency providing child welfare services that the safe-surrender site has physical custody of the child. In addition, any medical information pertinent to the child’s health, including but not limited to information obtained pursuant to the medical information questionnaire that has been received by or is in the possession of the safe-surrender site, shall be provided to that child protective services or county agency.

Immunity for the Provider

A safe-surrender site, or the personnel of a safe-surrender site, shall not have liability of any kind for a surrendered child prior to taking actual physical custody of the child. A safe-surrender site, or personnel of the safe-surrender site, that accepts custody of a surrendered child shall not be subject to civil, criminal, or administrative liability for accepting the child and caring for the child in the good-faith belief that action is required or authorized by this section, including but not limited to instances where the child is older than 72 hours or the parent or individual surrendering the child did not have lawful physical custody of the child. A safe-surrender site, or the personnel of a safe-surrender site, shall not be subject to civil, criminal, or administrative liability for a surrendered child prior to the time that the site or its personnel know, or should know, that the child has been surrendered. This subdivision does not confer immunity from liability for personal injury or wrongful death, including but not limited to injury resulting from medical malpractice.

In order to encourage assistance to persons who voluntarily surrender physical custody of a child, no person who, without compensation and in good faith, provides assistance for the purpose of effecting the safe surrender of a minor 72 hours old or younger shall be civilly liable for injury to or death of the minor child as a result of any of his or her acts or omissions. This immunity does not apply to any act or omission constituting gross negligence, recklessness, or willful misconduct.

Protection for Relinquishing Parent

No person leaving an infant with a safe haven provider may be prosecuted for abandonment, failure to provide, or desertion.

Any personal identifying information that pertains to a parent or individual who surrenders a child that is obtained pursuant to the medical information questionnaire is confidential and shall be exempt from disclosure by the child protective services or county agency.

Effect on Parental Rights

Child protective services shall assume temporary custody of the child immediately upon receipt of notice of the child’s relinquishment. Child protective services shall immediately investigate the circumstances of the case and file a dependency petition for the child. As soon as possible, but no later than 24 hours after temporary custody is assumed, child protective services shall report all known identifying information concerning the child, except personal identifying information pertaining to the parent or individual who surrendered the child, to the California Missing Children Clearinghouse and to the National Crime Information Center.

If, prior to the filing of a dependency petition, a parent or individual who has voluntarily surrendered a child requests that the safe-surrender site that has physical custody of the child return the child and the safe-surrender site still has custody of the child, personnel of the safe-surrender site shall either return the child to the parent or individual or contact a child protective agency if any personnel at the safe-surrender site knows or reasonably suspects that the child has been the victim of child abuse or neglect.

Subsequent to the filing of a dependency petition, if, within 14 days of the voluntary surrender, the parent or individual who surrendered custody returns to claim physical custody of the child, the child welfare agency shall verify the identity of the parent or individual, conduct an assessment of his or her circumstances and ability to parent, and request that the juvenile court dismiss the petition for dependency and order the release of the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘relative’ means an adult who is related to the minor by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words ‘great,’ ‘great-great,’ or ‘grand,’ or the spouse of any of those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, ‘relative’ as used in this section has the same meaning as ‘relative’ as defined in § 11391(c).

In § 11391(c), the term ‘relative,’ subject to Federal approval of amendments to the State plan, means any of the following:

  • An adult who is related to the child as defined above
  • An adult who meets the definition of an approved, nonrelated, extended family member, as described in § 362.7
  • An adult who is either a member of the Indian child’s Tribe or an Indian custodian, as defined in § 1903(6) of Title 25 of the United States Code
  • An adult who is the current foster parent of a child, who has established a significant and familylike relationship with the child, and the child and the county child welfare agency, probation department, Indian Tribe, consortium of Tribes, or Tribal organization that has entered into an agreement pursuant to § 10553.1 identify this adult as the child’s permanent connection
Purpose of Guardianship

The court shall not terminate parental rights if:

  • The child is living with a relative who is unable or unwilling to adopt the child for reasons that do not include an unwillingness to accept legal or financial responsibility for the child, but otherwise is willing and capable of providing the child with a stable and permanent home, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child.
  • The court determines that termination would be detrimental to the child due to one or more of the following:
    • The parents have maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship.
    • A child 12 years of age or older objects.
    • The child is in a residential treatment facility, adoption is unlikely, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
    • The child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child, but who is willing and capable of providing the child with a stable and permanent home.
    • There would be substantial interference with a child’s sibling relationship, and ongoing contact is in the child’s best interests, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.
    • The child is an Indian child and there is a compelling reason for not terminating parental rights, including:
      • Terminating parental rights would substantially interfere with the child’s connection to his or her Tribal community or the child’s Tribal membership rights.
      • The child’s Tribe has identified guardianship, long-term foster care with a fit and willing relative, Tribal customary adoption, or another planned permanent living arrangement for the child.
A Guardian’s Rights and Responsibilities

The relative must be able to do the following:

  • Provide a safe, secure, and stable environment for the child
  • Exercise proper and effective care and control of the child
  • Provide a home and the necessities of life for the child
  • Protect the child from his or her parents
  • Facilitate visitation with the child’s other relatives
  • Provide legal permanence for the child
Qualifying the Guardian

The State Department of Social Services shall prepare an assessment that shall include:

  • A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family since the time of placement
  • An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status
  • A preliminary assessment of the eligibility and commitment of any identified prospective guardian, including a social history screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of guardianship
  • The relationship of the child to any identified prospective guardian, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian, the relative’s strong commitment to caring permanently for the child, the motivation for seeking guardianship
  • A statement from the child concerning placement and the guardianship
  • Whether the child over age 12 has been consulted about the proposed relative guardianship arrangements, unless the child’s age or physical, emotional, or other condition precludes his or her meaningful response

For the purpose of this paragraph, the term ‘extended family’ includes, but is not limited to, the child’s siblings, grandparents, aunts, and uncles.

Procedures for Establishing Guardianship

If the court finds that the child is a dependent child under § 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child. The parent and the child must agree to the guardianship, unless the child’s age or physical, emotional, or mental condition prevents the child’s meaningful response. The court shall advise the parent and the child that no reunification services will be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.

No person shall be appointed a legal guardian under this section until an assessment as specified in § 361.5(g) is read and considered by the court and reflected in the minutes of the court.

The proceeding for the appointment of a guardian for a child who is a dependent of the juvenile court shall be in the juvenile court. If the court finds that legal guardianship is the appropriate permanent plan, it shall appoint the legal guardian and issue letters of guardianship. The assessment prepared pursuant to §§ 361.5(g), 366.21(i), 366.22(b), and 366.25(b) shall be read and considered by the court prior to the appointment, and this shall be reflected in the minutes of the court. The person preparing the assessment may be called and examined by any party to the proceeding.

At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.

Contents of a Guardianship Order

Following establishment of a legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by § 366.4. If, however, a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least 6 months, the court shall, except if the relative guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship.

Modification/Revocation of Guardianship

If a guardianship is revoked, the department shall notify the juvenile court of this fact. Proceedings to terminate a legal guardianship shall be held either in the juvenile court that retains jurisdiction over the guardianship or the court in the county where the guardian and child currently reside, based on the best interests of the child, unless the termination is due to the emancipation or adoption of the child. Prior to the hearing on a petition to terminate legal guardianship, the court shall order the department to prepare a report, that shall include an evaluation of whether the child could safely remain in, or be returned to, the legal guardian’s home, without terminating the legal guardianship, if services were provided to the child or legal guardian.

If the petition to terminate legal guardianship is granted, the court may resume dependency jurisdiction over the child and may order the department to develop a new permanency plan.

Unless the parental rights of the child’s parents have been terminated, they shall be notified that the guardianship has been terminated and shall be entitled to participate in the new permanency planning hearing. At the hearing, the parents may be considered as custodians, but the child shall not be returned to the parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. The court may, if it is in the best interests of the child, order that reunification services again be provided to the parents.

If, following the establishment of a legal guardianship, the department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction and order that a hearing be held to determine whether adoption or continued legal guardianship is the most appropriate plan for the child.

Eligibility for Guardianship Subsidy

If the court appoints an approved relative caregiver as the child’s legal guardian, the child has been in the care of that approved relative for a period of 6 consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for Federal financial participation, the child shall be eligible for aid under the Kin-GAP Program. The non-federally eligible child placed with an approved relative caregiver who is appointed as the child’s legal guardian shall be eligible for aid under the State-funded Kin-GAP Program.

Aid shall be provided on behalf of a child under age 18 under all of the following conditions:

  • The child satisfies both of the following requirements:
    • He or she has been removed from his or her home pursuant to a voluntary placement agreement or as a result of judicial determination, including being adjudged a dependent child of the court, to the effect that continuation in the home would be contrary to the welfare of the child.
    • He or she has been eligible for Federal foster care maintenance payments while residing in the approved home of the prospective relative guardian for at least 6 consecutive months.
  • Being returned to the parental home or adopted are not appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the relative guardian, and the relative guardian has a strong commitment to caring permanently for the child and, with respect to the child who is age 12 or older, the child has been consulted regarding the kinship guardianship arrangement.
  • The child has had a kinship guardianship established pursuant to § 360 or 366.26.
  • The child has had his or her dependency jurisdiction terminated concurrently or subsequently to the establishment of the kinship guardianship.
Links to Agency Policies

Child Welfare Services Manual, Div. 31, Chap. 31-110 through 31-200 (PDF – 273 KB)

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Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

In any case in which a child is removed from the physical custody of his or her parents pursuant to § 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative, regardless of the relative’s immigration status.

For purposes of this section:

  • ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.
  • ‘Relative’ means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words ‘great,’ ‘great-great,’ or ‘grand,’ or the spouse of any of these persons, even if the marriage was terminated by death or dissolution. However, only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle, or sibling.

If the child is removed from home, the social worker shall conduct an investigation within 30 days in order to identify and locate all grandparents, adult siblings, and other adult relatives of the child, including any other adult relatives suggested by the parents. The social worker shall provide to all adult relatives who are located, except when that relative’s history of family or domestic violence makes notification inappropriate, the following information:

  • That the child has been removed from his or her home
  • An explanation of the various options to participate in the care and placement of the child and support for the child’s family, including any options that may be lost by failing to respond

The social worker shall use due diligence in investigating the names and locations of the relatives, including, but not limited to, asking the child in an age-appropriate manner about relatives important to the child, consistent with the child’s best interests.

Requirements for Placement with Relatives

In determining whether placement with a relative is appropriate, the county social worker and court shall consider the following factors:

  • The best interests of the child, including special physical, psychological, educational, medical, or emotional needs
  • The wishes of the parent, relative, and child, if appropriate
  • Placement of siblings and half-siblings in the same home if that placement is found to be in the best interests of each of the children
  • The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect
  • The nature and duration of the relationship between the child and the relative and the relative’s desire to care for and provide legal permanency for the child if reunification is unsuccessful

For a relative to be considered appropriate to receive placement of a child, the relative’s home shall first be approved pursuant to the process and standards described in § 309(d). An assessment of the relative’s suitability shall include:

  • An in-home inspection to assess the safety of the home and the ability of the relative to care for the child’s needs
  • The results of a criminal records check
  • A check of allegations of prior child abuse or neglect concerning the relative and other adults in the home

If the criminal records check indicates that the person has been convicted of a crime for which an exemption cannot be granted, the child shall not be placed in the home. If the criminal records check indicates that the person has been convicted of a crime for which an exemption may be granted, the child shall not be placed in the home unless an exemption has been granted by the county based on substantial and convincing evidence to support a reasonable belief that the person with the conviction is of good character and does not present a risk of harm to the child.

Requirements for Placement of Siblings

In any case in which a social worker takes a minor into custody pursuant to § 306, the social worker shall, to the extent that it is practical and appropriate, place the minor together with any siblings or half-siblings who are also detained. If the siblings or half-siblings are not placed together, the worker must include in the report prepared for the court a statement of his or her continuing efforts to place the siblings together or why those efforts are not appropriate.

Each social study or evaluation made by a social worker shall include, but not be limited to, a factual discussion of whether the child has siblings under the court’s jurisdiction and, if any siblings exist, all of the following:

  • The nature of the relationship between the child and his or her siblings
  • The appropriateness of developing or maintaining the sibling relationships
  • If the siblings are not placed together in the same home, why the siblings are not placed together and what efforts are being made to place the siblings together, or why those efforts are not appropriate
  • If the siblings are not placed together, the frequency and nature of the visits between siblings
  • The impact of the sibling relationships on the child’s placement and planning for legal permanence

The report shall include a discussion of indicators of the nature of the child’s sibling relationships, including, but not limited to, whether the siblings were raised together in the same home, have shared significant common experiences, or have existing close and strong bonds; whether the child expresses a desire to visit or live with his or her sibling, as applicable; and whether ongoing contact is in the child’s best emotional interests.

Relatives Who May Adopt

It is the intent of the legislature to expedite legal permanency for children who cannot return to their parents and to remove barriers to adoption by relatives of children who are already in the dependency system or who are at risk of entering the dependency system.

A relative desiring to adopt a child may, for that purpose, file a petition in the county in which the petitioner resides. For purposes of this section, ‘relative’ means an adult who is related to the child or the child’s half-sibling by blood or affinity, including all relatives whose status is preceded by the words ‘step,’ ‘great,’ ‘great-great,’ or ‘grand,’ or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.

Requirements for Adoption by Relatives

If the prospective adoptive parent of a child is a foster parent with whom the child has lived for a minimum of 6 months or a relative caregiver who has had an ongoing and significant relationship with the child, an assessment or home study of the prospective adoptive parent may require only the following:

  • A criminal records check
  • A determination that the prospective adoptive parent has sufficient financial stability to support the child and ensure that any adoption assistance program payment or other government assistance to which the child is entitled is used exclusively to meet the child’s needs
  • A determination that the prospective adoptive parent has not abused or neglected the child while the child has been in his or her care and will likely not abuse or neglect the child in the future
  • A determination that the prospective adoptive parent can address racial and cultural issues that may affect the child’s well-being
  • Interviews with the relative caregiver or foster parent, each individual residing in the home, and the child to be adopted

A report of a medical examination of the foster parent or the relative caregiver shall be included in the assessment of each applicant unless the department, county adoption agency, or licensed adoption agency determines that, based on other available information, this report is unnecessary. The assessment shall require certification that the applicant and each adult residing in the applicant’s home have received a test for communicable tuberculosis.

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

The term ‘reunification services’ includes:

  • Child welfare services
  • Court-ordered counseling and other treatment services for the reunification of the child with the child’s family
When Reasonable Efforts Are Required

Family reunification services are required when a child is removed from a parent’s or guardian’s custody and shall be provided as follows:

  • For a child age 3 or older, services may not be offered for longer than a period of 12 months from the date the child entered foster care.
  • For a child under age 3, services may not be offered for longer than period of 6 months from the date the child entered foster care.

For the purpose of placing and maintaining a sibling group together in a permanent home if reunification efforts fail, for a child in a sibling group that was removed from the physical custody of his or her parent or guardian and in which one member of that group was under age 3 on the date of initial removal, court-ordered services to some or all of the sibling group may be limited to a period of 6 months from the date the child entered foster care. For the purposes of this paragraph, a sibling group is two or more children who are related to each other as full or half siblings.

When Reasonable Efforts Are NOT Required

Reunification services need not be provided when the court finds by clear and convincing evidence any of the following:

  • The whereabouts of the parent are unknown.
  • The parent has a mental disability that makes him or her incapable of utilizing services.
  • There is a prior adjudication of physical or sexual abuse of a child, and after the child was returned home, the child has been removed due to additional physical or sexual abuse.
  • The parent caused the death of another child through abuse or neglect.
  • A child younger than age 5 has suffered severe physical abuse that was inflicted by the parent, as defined in § 300(e).
  • The parent has inflicted severe physical or sexual abuse on the child or a sibling, and the court finds that it would not benefit the child to pursue reunification with the offending parent.
  • The parent is not receiving reunification services for a sibling of the child.
  • The child was conceived as a result of a sexual offense.
  • The parent has willfully abandoned the child.
  • The court ordered termination of reunification services for any siblings of the child because the parent failed to reunify with the sibling, and that parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling from the parent.
  • The parent’s rights to another child have been terminated, and conditions that led to the termination have not been remedied.
  • The parent has been convicted of a violent felony.
  • The parent has a history of chronic use of drugs or alcohol and refused to comply with a treatment program.
  • The parent has indicated a lack of interest in reunification services.
  • The parent has on one or more occasions abducted the child or a sibling from his or her placement.

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

A custodial parent who has been diagnosed as having a terminal condition, as confirmed by a licensed physician, may nominate a standby guardian.

How to Establish a Standby Guardian

A nomination of a guardian may be made:

  • In the petition for the appointment of the guardian or at the hearing on the petition
  • In a writing signed either before or after the petition for the appointment of the guardian is filed
How Standby Authority is Activated

The court may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the child.

The nomination of a guardian becomes effective when made or upon the occurrence of the specified condition or conditions that are stated in the writing, including the subsequent legal incapacity or death of the person making the nomination.

Involvement of the Noncustodial Parent

Citation: Prob. Code §§ 1500; 2105
Subject to § 1502, a parent may nominate a guardian of the person or estate, or both, of a minor child in either of the following cases:

  • The other parent nominates, or consents in writing to the nomination of, the same guardian for the same child.
  • At the time the petition for appointment of the guardian is filed, either the other parent is dead or lacks legal capacity to consent to the nomination, or the consent of the other parent would not be required for an adoption of the child.

The appointment of a joint or standby guardian shall not be made over the objections of a noncustodial parent unless it is found that the noncustodial parent’s custody would be detrimental to the minor, as provided in § 3041 of the Family Code.

Authority Relationship of the Parent and the Standby

The custodial parent and standby guardian will share in the care, custody, and control of the child.

It is the intent of the Legislature for a parent with a terminal condition to be able to make arrangements for the joint care, custody, and control of his or her minor children to minimize the emotional stress of, and disruption for, the minor children when the parent is incapacitated or upon the parent’s death, and to avoid the need to provide a temporary guardian or place the minor children in foster care, pending appointment of a guardian, as might otherwise be required.

Withdrawing Guardianship

Unless the writing making the nomination expressly provides otherwise, a nomination made under this article remains effective notwithstanding the subsequent legal incapacity or death of the person making the nomination.

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

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CPS Statutes & Rules

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

2nd Circuit

3rd Circuit

4th 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

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th 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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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

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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.”)

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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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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

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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

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5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd 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

2nd 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)

4th Circuit

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US Supreme Court

CPS Statutes

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

 

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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.  

 

 

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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).

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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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)

6th Circuit

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9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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