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

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 a 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.

Delaware

 

Policy and Procedures Manual Safety and Risk Assessments

Links to State and Tribal Child Welfare Law and Policy

To better understand this issue and to view it across States, download the PDF (223 KB) of this publication.

Current Through March 2015

Statutes

http://delcode.delaware.gov/index.shtml

  • Adoption: Title 13, Chapters 9, 11; Title 31, Chapter 54
  • Child Protection: Title 16, Chapter 9
  • Child Welfare: Title 31, Chapters 3, 36, 38
  • Guardianship: Title 13, Chapter 23
Regulation/Policy

http://regulations.delaware.gov/AdminCode/

See Titles 9 and 16http://kids.delaware.gov/information/policy_dfs.shtml

Other Resources

Rules of the Delaware State Courtsexternal link

Child Witnesses to Domestic Violence

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

Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: A person is guilty of endangering the welfare of a child when the person commits any violent felony, second-degree reckless endangering, third-degree assault, terroristic threatening, second-degree unlawful imprisonment against a victim, or third-degree child abuse, knowing that such felony or misdemeanor was witnessed, either by sight or sound, by a child younger than age 18 who is a member of the person’s family or the victim’s family.

Consequences

The crime of endangering the welfare of a child may be classified as follows:

  • When the death of a child occurs while the child’s welfare was endangered, endangering the welfare of a child is a Class E felony.
  • When serious physical injury to a child occurs while the child’s welfare was endangered, endangering the welfare of a child is a Class G felony.
  • When a child becomes the victim of a sexual offense, as defined in § 761(d) of this title, while the child’s welfare was endangered, endangering the welfare of a child is a Class G felony.
  • In all other cases, endangering the welfare of a child is a Class A misdemeanor.

Definitions of Child Abuse and Neglect

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

Current Through February 2016

Physical Abuse

‘Abuse’ or ‘abused child’ means that a person has care, custody, or control of a child and causes or inflicts:

  • Physical injury through unjustified force
  • Emotional abuse
  • Torture
  • Exploitation
  • Maltreatment or mistreatment

‘Mistreatment’ or ‘maltreatment’ are behaviors that inflict unnecessary or unjustifiable pain or suffering on a child without causing physical injury. Behaviors included will consist of actions and omissions, ones that are intentional, and ones that are unintentional.

Neglect

‘Neglect’ or ‘neglected child’ means that a person who is responsible for the care, custody, and/or control of the child and has the ability and financial means to provide for the care of the child:

  • Fails to provide necessary care with regard to food, clothing, shelter, education, health, medical, or other care necessary for the child’s emotional, physical, or mental health, or safety and general well-being
  • Abuses alcohol or a controlled substance chronically and severely, is not active in treatment for such abuse, and the abuse threatens the child’s ability to receive care necessary for that child’s safety and general well-being
  • Fails to provide necessary supervision appropriate for a child when the child is unable to care for his or her own basic needs or safety, after considering such factors as the child’s age, mental ability, physical condition, the length of the caregiver’s absence, and the context of the child’s environment
Sexual Abuse/Exploitation


‘Abuse’ or ‘abused child’ means that a person causes or inflicts sexual abuse on a child.

‘Sexual abuse’ means any act against a child that is described as a sex offense in § 761(h) of Title 11, including, but not limited to, unlawful sexual contact, child pornography, promoting child prostitution, and incest.

‘Exploitation’ means taking advantage of a child for unlawful or unjustifiable personal or sexual gain.

Emotional Abuse

The term ‘abuse’ includes emotional abuse. ‘Emotional abuse’ means threats to inflict undue physical or emotional harm, and/or chronic or recurring incidents of ridiculing, demeaning, making derogatory remarks, or cursing.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Code Tit. 16, § 903
A report is required when any person knows or in good faith suspects child abuse or neglect.

Persons Responsible for the Child

‘Care, custody, and control’ or ‘those responsible for care, custody, and control’ means a person or persons in a position of trust, authority, supervision, or control over a child. It may include:

  • A parent, guardian, or custodian
  • Other members of the child’s family or household, meaning persons living together permanently or temporarily without regard to whether they are related to each other and without regard to the length of time or continuity of such residence, and may include persons who previously lived in the household such as paramours of a member of the child’s household
  • Any person who, regardless of whether a member of the child’s household, is defined as family or relatives
  • Persons temporarily responsible for the child’s well-being or care such as a health-care provider, aide, teacher, instructor, coach, sitter, daycare or child care provider, or any other person having regular direct contact with children through affiliation with a school, church, or religious institution, health-care facility, athletic or charitable organization, or any other organization whether such a person is compensated or acting as a volunteer
  • Any person who has assumed control of or responsibility for the child
Exceptions

No child who in good faith is under treatment solely by spiritual means through prayer in accordance with the practices of a recognized church or religious denomination shall for that reason alone be considered neglected.

Definitions of Domestic Violence

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

Current Through August 2013

Defined in Domestic Violence Civil Laws

This issue is not addressed in the statutes reviewed.

Defined in Child Abuse Reporting and Child Protection Laws

‘Domestic violence’ includes, but is not limited to, physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person.

‘Domestic violence’ does not include reasonable acts of self-defense by one parent for self-protection or in order to protect the child from abuse or threats of abuse by the other parent or other adult living in the child’s home.

‘Perpetrator of domestic violence’ means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:

  • Any felony-level offense
  • Assault in the third degree
  • Reckless endangering in the second degree
  • Reckless burning or exploding
  • Unlawful imprisonment in the second degree
  • Unlawful sexual contact in the third degree
  • Criminal contempt of a family court protective order based on an assault or other physical abuse, threat of assault or other physical abuse, or any other actions placing the petitioner in immediate risk or fear of bodily harm
Defined in Criminal Laws

This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

The act of domestic violence may be committed by one parent against the other parent, against any child living in either parent’s home, or against any other adult living in the child’s home.

Making and Screening Reports of Child Abuse and Neglect

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

Current Through February 2013

Individual Responsibility to Report

Any person, agency, organization, or entity who knows or in good faith suspects child abuse or neglect shall make a report in accordance with § 904 of this title. In addition to and not in lieu of reporting to the Division of Family Services, any such person also may give oral or written notification of that knowledge or suspicion to any police officer who is in the presence of such person for the purpose of rendering assistance to the child in question or investigating the cause of the child’s injuries or condition.

An immediate oral report shall be made by telephone or otherwise.

Content of Reports

Contents of any written report shall be in accordance with rules and regulations of the division. When a written report is made, the division will contact the reporter within 48 hours to ensure that full information has been received and to obtain additional information, medical records, or both.

Reporting Suspicious Deaths

In implementing the division’s role in the child protection system, the division shall ensure that every case of child death, and every case of near death due to abuse or neglect, is reported to the Child Death, Near Death and Stillbirth Commission pursuant to title 31, § 323(e).

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Any report required by the reporting laws shall be made to the Division of Child Protective Services in the Department of Services for Children, Youth, and Their Families. The division will maintain a 24-hour toll-free telephone line for accepting reports. Although reports may be made anonymously, the division shall, in all cases, after obtaining relevant information regarding alleged abuse or neglect, request the name and address of any person making a report. When a written report is made by a mandatory reporter, the division shall contact the reporter within 48 hours of receipt of the report in order to ensure that full information has been received and to obtain any additional information or medical records, or both, that may be pertinent.

Initial Screening Decisions

Upon receipt of a report, the division shall check the internal information system to determine whether previous reports have been made regarding actual or suspected abuse or neglect of the subject child, any siblings, family members, or the alleged perpetrator.

The division shall forward reports to the appropriate division staff, who shall determine, through the use of protocols developed by the division, whether an investigation or the family assessment and services approach should be used to respond to the allegation. The protocols for making this determination shall be developed by the division and shall give priority to ensuring the well-being and safety of the child.

Agency Conducting the Assessment/Investigation

The division may investigate any report, but shall conduct an investigation involving all reports that involve the commission or attempt to commit a crime against a child by a person responsible for the care, custody, and control of the child. The division will contact the Delaware Department of Justice and the appropriate law enforcement agency and provide the agency with a detailed description of the report. The agency will assist the division with the investigation and promptly conduct its own criminal investigation.

Multidisciplinary services shall be used whenever possible in conducting the investigation or family assessment and services approach, including the services of law enforcement agencies, the medical community, and other agencies, both public and private.

Assessment/Investigation Procedures

The investigation shall include, but need not be limited to, the nature, extent, and cause of the abuse or neglect; collection of evidence; the identity of the alleged perpetrator; the names and condition of other children and adults in the home; the home environment; the relationship of the subject child to the parents or other persons responsible for the child’s care; any indication of incidents of physical violence against any other household or family member; background checks on all adults in the home; and the gathering of other pertinent information.

In a family assessment and services approach, the division shall assess the service needs of the family from information gathered from the family and other sources and shall identify and provide services for families where it is determined that the child is at risk of abuse or neglect. The division shall:

  • Commence an immediate investigation if at any time during the family assessment it is determined that an investigation is required or is otherwise appropriate
  • Conduct a family assessment on reports initially referred for an investigation if it is determined that a complete investigation is not required
Timeframes for Completing Investigations

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

Classification of Reports

The case finding may indicate that it is substantiated or unsubstantiated. A person who has been substantiated for abuse or neglect must be entered on the child protection registry at one of four designated child protection levels related to the risk of future harm to children:

  • Child Protection Level I: Low risk
  • Child Protection Level II: Moderate risk
  • Child Protection Level III: High risk
  • Child Protection Level IV: Highest risk

If the division determines from its investigation not to substantiate the person for abuse or neglect, the person may not be entered on the child protection registry for that reported incident.

Parental Drug Use as Child Abuse

To better understand this issue and to view it across States, download the PDF (554 KB) of this publication.

Current Through April 2015

‘Neglect’ or ‘neglected child’ means that a person is responsible for the care, custody, and/or control of the child; has the ability and financial means to provide for the care of the child; and chronically and severely abuses alcohol or a controlled substance, is not active in treatment for the abuse, and the abuse threatens the child’s ability to receive care necessary for that child’s safety and general well-being.

A person is guilty of endangering the welfare of a child when:

  • The person commits any offense set forth in chapter 47 of title 16 [Uniform Controlled Substances Act] in any dwelling, knowing that any child younger than age 18 is present in the dwelling at the time.
  • The person provides or permits a child to consume or inhale any substance not prescribed to the child by a physician, as defined in title 16, §§ 4714, 4716, 4718, 4720, and 4722.

Endangering the welfare of a child shall be punished as follows:

  • When the death of a child occurs while the child’s welfare was endangered as defined above, endangering the welfare of a child is a class E felony.
  • When serious physical injury to a child occurs while the child’s welfare was endangered as defined above, endangering the welfare of a child is a class G felony.

Representation of Children in Child Abuse and Neglect Proceedings

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

Current Through August 2014

Making The Appointment

In determining whether to represent an abused, neglected or dependent child, the Office of the Child Advocate may communicate with any child at issue and may have access to all information relating to that child held or maintained by the department and/or the Family Court. If the Office determines that a child needs guardian ad litem (GAL) representation, the court shall sign an order appointing the designated attorney as attorney GAL.

In the event that the Family Court judge determines that an attorney GAL should be appointed, the judge shall make the appointment. The appointment shall last until the attorney GAL is released from responsibility by order of the court, or until the attorney GAL’s commitment to the court ends.

In the event that the Family Court judge determines that a court-appointed special advocate (CASA) should be appointed, the Family Court judge shall sign an order appointing the CASA as GAL.

For the purposes of a Child Abuse Prevention and Treatment Act [42 U.S.C. § 5106, et seq.] grant to the State under Public Law 93-247 or any related State or Federal legislation, the CASA shall be deemed a GAL to represent the best interests of the minor in proceedings before the court. No bond shall be required from any CASA who serves as a GAL under this chapter.

The Use of Court-Appointed Special Advocates (CASAs)

There is hereby established a Court-Appointed Special Advocate Program within the Family Court. The program will include coordinators who will be members of the staff of the Family Court. The coordinators will be responsible for the day-to-day operations of the program and will provide direct supervision to the CASAs.

The program will include contract attorneys who will provide legal representation and advice for the CASAs and for the CASA Program. The program attorneys will be selected by the chief judge of the Family Court.

The program will include volunteers to serve as CASAs at the pleasure of the chief judge of the Family Court. The CASA may be appointed in child welfare proceedings or any other proceeding, as deemed appropriate by a Family Court judge.

The CASA shall have the authority to review all documents and interview all pertinent persons having significant information relating to the child and the child’s life circumstances.

The appointment shall last until the CASA is released from responsibility by order of the court, or until the CASA’s commitment to the court ends.

The CASA shall be a party to any child welfare proceeding or any other proceeding to which the CASA has been appointed and the child is the subject, and shall possess all the procedural and substantive rights of a party.

Qualifications/Training

The attorney GAL shall be trained by the Office of the Child Advocate or complete a course approved by the office prior to representing any child before the court. The attorney GAL shall be required to participate in ongoing training regarding child welfare.

CASAs shall be individuals who have demonstrated an interest in children and their welfare. CASAs must be willing to participate in a training course conducted by the Family Court and in ongoing training and supervision throughout their involvement in the program. Additionally, applicants to become CASAs must submit to background checks and participate in interviews to determine their fitness for these responsibilities. Upon recommendation of the CASA coordinator, the chief judge of the Family Court will make a final determination regarding a person’s participation in the program.

The CASA must be willing to commit to the court for 1 year of service. At the end of each year of service, the CASA, with the approval of the coordinator, may recommit for another year.

CASAs will have no associations that would create a conflict of interest with their duties as CASAs.

Qualified adults shall not be discriminated against based upon sex, socioeconomic, religious, racial, ethnic, or age factors.

Specific Duties

The attorney GAL’s duty is to the child and to represent the child’s best interests. As such, the attorney GAL shall:

  • Represent the best interests of the child in all child welfare proceedings
  • Conduct an independent investigation of the circumstances of the case that shall include, but not be limited to, interviews and/or observations of the child and relevant individuals, as well as a review of all relevant records and reports
  • Present evidence to the court
  • Receive notice of every court proceeding and receive copies of every pleading
  • Participate in all depositions, negotiations, discovery, pretrial conferences, hearings, and appeals
  • Have access to all records regarding the child and his or her family maintained by the Division of Family Services
  • Monitor cases to ensure that the terms of the court’s orders are fulfilled and permanency for the child is achieved
  • Receive reasonable notice from the division of changes in placement, school, or any other change of circumstances affecting the child
  • Receive reasonable notice from the division of any founded complaint involving:
    • The child when the child is the alleged victim
    • The residence in which the child lives
    • The home-based daycare that the child attends
  • Request a hearing before the court when the plan on behalf of the child is not implemented, is not meeting the child’s needs, or upon completion of an investigation
  • Request any appropriate relief from the court on behalf of the child
  • Ascertain the wishes of the child and make the child’s wishes known to the court

If the attorney GAL concludes that the child’s wishes differ from the position of the attorney GAL, he or she will notify the court of the conflict.

How the Representative Is Compensated

The attorney shall be employed, contracted, and/or appointed by the Office of the Child Advocate.

Case Planning for Families Involved With Child Welfare Agencies

To better understand this issue and to view it across States, download the PDF (811 KB) of this publication.

Current Through April 2014

When Case Plans Are Required

A written case plan must be prepared for each child under the supervision or custody of the Department of Services for Children, Youth, and Their Families.

In policy: All families active with the Division of Family Services (DFS) have a right to a written family service plan that clearly spells out goals and objectives in positive, measurable terms.

DFS is responsible for planning and meeting the child’s needs while in out-of-home care. A plan for a child in care must be completed for every child within 5 days of placement.

Who May Participate in the Case Planning Process

The department must prepare and maintain the written case plan.

In policy: Caseworkers must make attempts to develop written service plans with each parent for each child, including the nonresidential parent. Case plans must be individualized for each parent and should take into account the parents’ relationship with their child. Caseworkers must involve the parents in the development of the family service plan, and it must be written in language that the parents can understand.

Until the court terminates parental rights, parents must be included in the development and review of the plan for a child in care. They also must be given the opportunity to review and sign all plans related to the child.

Contents of a Case Plan

The case plan shall include, but not be limited to:

  • A description of the child’s problems
  • The care and treatment of the child
  • Any other services to be provided to the child and the child’s family
  • A goal to achieve any placement of the child outside of the child’s home in the least restrictive setting available and in close proximity to the child’s home, consistent with the best interests and special needs of the child

The permanent placement plan for a child must include, but is not limited to:

  • A description of the type of home or institution in which the child is presently placed, including a discussion of the safety and appropriateness of the placement
  • The identification of specific goals for the responsible placement or contract agency and for the child and/or the child’s family that need to be accomplished in order to alleviate or mitigate the causes necessitating placement of the child
  • The identification of specific services to be provided and of the requirements on the placement agency, parents, legal guardian, foster parents, contract agency, and/or child to achieve the desired outcome
  • The projected date by which the child may be safely returned home or maintained in an alternate permanent home
  • A permanent placement goal
  • The date and signature by each necessary person accepting the plan or an explanation for the lack of a signature

In policy: When the child has not been removed from the home, the family service plan is used to outline the activities that the caseworker, client, and others undertake to resolve the problems that place the child at risk. At all points of service delivery, including assessment, selection of services, case planning, and closure, the safety of the child is the primary focus.

A plan for a child in care must be completed whenever DFS obtains custody of a child, regardless of the placement the child may be in. The plan has two main components, as follows:

  • For a child in care 5 to 30 days, the Child Placement Plan addresses circumstances surrounding the placement and the child’s immediate needs. The plan identifies the child’s medical conditions and current medications, if any, health provider, and current school information, including grade and educational classification. This must be completed within 5 working days of the child’s placement.
  • For a child in placement 30 days or more, the Child Service Plan addresses the child’s needs while in placement and until permanency is achieved. The areas specifically addressed are medical, dental needs, educational/vocational needs, social/emotional needs, behavior management, preparation for independent living, court requirements, visitation, and activities to locate a permanent home. This plan must be completed within 30 days every time a child moves to a new placement and be updated annually.

Concurrent Planning for Permanency for Children

To better understand this issue and to view it across States, download the PDF (295 KB) of this publication.

Current Through November 2012

This issue is not addressed in the statutes reviewed.

Court Hearings for the Permanent Placement of Children

To better understand this issue and to view it across States, download the PDF (772 KB) of this publication.

Current Through January 2016

Schedule of Hearings

The Division of Family Services must conduct a written review of the case plan for each child under its supervision or custody at least every 6 months.

An administrative review by the Child Placement Review Board is required:

  • Once during the first 12 months after placement of the child
  • At least annually thereafter until the child exits care or custody

The Child Placement Review Board is with the Administrative Office of the Courts.

The board, with the approval of the executive committee, may petition the court for a judicial review of a child in the care or custody of a placement agency if:

  • The placement agency disagrees with the recommendations of the board.
  • The board determines that there has been a failure by the placement agency to progress toward establishing permanency for the child.
  • The board determines that the placement agency is not fulfilling the requirements of the permanency plan as ordered by the court.
Persons Entitled to Attend Hearings

The following persons may be present at a review:

  • The Division of Family Services or Division of Youth Rehabilitative Services caseworker or supervisor most closely involved with a case
  • Placement agency representatives
  • The child’s parents or legal guardians
  • The guardian ad litem or court-appointed special advocate for the child and/or their attorneys
  • Staff of the Child Placement Review Board
  • Other participants with notice to provide information at the review and anyone else deemed by the Review Committee as necessary to the review process

A child of appropriate age and mental capacity who requests a private interview with the Review Committee may be interviewed privately at the committee’s discretion.

Determinations Made at Hearings

The review panel must consider and evaluate the following:

  • The safety and best interests of the child
  • The goal of the permanent placement plan
  • Services to the child and others involved
  • For children in the care or custody of the division, the placement of siblings
  • The length of time spent in out-of-home placements
  • The number of placements
  • The child’s wishes, when appropriate
  • Efforts made by all involved to fulfill the case plan
  • The opportunity for parents, legal guardians, and siblings to visit regularly with the child
  • Obstacles that hinder or prevent attainment of the placement goal

The review panel shall submit written findings of and recommendations based on its administrative review to the placement agency, the child’s parents, legal guardians, or to the child’s guardian ad litem or court-appointed special advocate within 15 days of the review. A findings and recommendations report must offer recommendations regarding:

  • The appropriateness of the case plan and the length of time determined to be necessary to achieve the identified goal, with consideration of the best interests and safety of the child
  • The safety and appropriateness of the child’s current placement in meeting the child’s needs
  • The appropriateness and timely provision of the services necessary for the identified goal
  • Whether further advocacy by the board is necessary and appropriate
Permanency Options

The administrative review shall determine whether the child can be safely returned home or maintained in an alternate permanent home.

In policy: Permanency, as it relates to children, is the placement of a child with a family or caregiver in which it is believed that the child will remain until he or she reaches adulthood. It is a resource that can meet the child’s needs physically, emotionally, educationally, medically, and psychologically. This resource is legally sanctioned by the court.

Permanency options that exist for children are as follows and are listed in order of preference:

  • Reunification with parents
  • Custody and guardianship with a relative/kinship caretaker
  • Termination of parental rights and adoption
  • Permanent guardianship
  • Guardianship with an approved nonrelative caretaker
  • An alternative planned permanent living arrangement

Determining the Best Interests of the Child

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

Current Through March 2016

The court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the court shall consider all relevant factors, including:

  • The wishes of the child’s parent or parents as to his or her custody and residential arrangements
  • The wishes of the child as to his or her custodian(s) and residential arrangements
  • The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child’s best interests
  • The child’s adjustment to his or her home, school, and community
  • The mental and physical health of all individuals involved
  • Past and present compliance by both parents with their rights and responsibilities to their child
  • Evidence of domestic violence
  • The criminal history of any party or any other resident of the household, including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense

The court shall not presume that one parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child’s primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.

Grounds for Involuntary Termination of Parental Rights

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

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The procedure for termination of parental rights may be initiated whenever it appears to be in the child’s best interests and that one or more of the following grounds exist:

  • The child has been abandoned.
  • The parent has abandoned a baby in accordance with Tit. 16, § 907A and failed to manifest an intent to exercise parental rights within 30 days.
  • The parent is found by the court to be mentally incompetent and, from evidence of two qualified psychiatrists selected by the court, found to be unable to discharge parental responsibilities in the foreseeable future.
  • The parent has been found by a court of competent jurisdiction to have:
    • Committed a felony-level offense against the person in which the victim was a child
    • Aided, abetted, attempted, conspired, or solicited to commit an offense described above
    • Committed or attempted to commit the offense of Dealing in Children, as set forth in Tit. 11, § 1100
    • Committed the felony-level offense of endangering the welfare of a child
  • The parent’s parental rights over a sibling of the child have been involuntarily terminated in a prior proceeding.
  • The parent has subjected a child to torture, chronic abuse, sexual abuse, and/or life-threatening abuse.
  • The child has suffered unexplained serious physical injury, near death, or death under such circumstances that indicate that such injuries, near death, or death resulted from the intentional or reckless conduct or willful neglect of the parent.

A procedure to terminate parental rights may also be initiated when it is found that the parent has failed to plan adequately for the child’s physical needs or mental and emotional health and development, and one or more of the following conditions are met:

  • In the case of a child in the care of the Department of Services for Children, Youth and Their Families:
    • The child has been in the care of the department for 1 year, or for 6 months in the case of a child who comes into care as an infant, or there is a history of previous placement or placements of the child.
    • There is a history of neglect, abuse, or lack of care of the child.
    • The parent is incapable of discharging parental responsibilities due to extended or repeated incarceration.
    • The parent is not able or willing to assume prompt legal and physical custody of the child, and to pay for the child’s support in accordance with the parent’s financial means.
    • Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child.
  • In the case of a child in the home of a stepparent, guardian, permanent guardian, or blood relative:
    • The child has resided in the home of the stepparent, guardian, permanent guardian, or blood relative for a period of at least 1 year or for a period of 6 months in the case of an infant.
    • The court finds the parent is incapable of discharging parental responsibilities, and there appears to be little likelihood that the parent will be able to discharge such parental responsibilities in the near future.
Circumstances That Are Exceptions to Termination of Parental Rights

The court shall not terminate a parent’s rights solely because the parent, in good faith, provides for his or her child, in lieu of medical treatment, treatment by spiritual means alone through prayer.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

A baby may be relinquished to a safe haven provider. ‘Baby’ shall mean a child not more than 14 days old, except that for hospitals and their employees and volunteers, ‘baby’ shall mean a child reasonably believed to be not more than 14 days old.

Who May Relinquish the Infant

A person may voluntarily surrender a baby.

Who May Receive the Infant

A baby may be surrendered directly to an employee or volunteer of the emergency department of a Delaware hospital inside of the emergency department provided that said baby is surrendered alive, unharmed, and in a safe place therein.

Responsibilities of the Safe Haven Provider

A Delaware hospital shall be authorized to take temporary emergency protective custody of the baby who is surrendered pursuant to this section. The hospital shall either make reasonable efforts to directly obtain pertinent medical history information pertaining to the baby and the baby’s family or attempt to provide the person with a postage-paid medical history information questionnaire.

The hospital shall attempt to provide the person leaving the baby with the following:

  • Information about the Safe Arms program
  • Information about adoption and counseling services, including information that confidential adoption services are available and information about the benefits of engaging in a regular, voluntary adoption process
  • Brochures with telephone numbers for public or private agencies that provide counseling or adoption services

The hospital shall attempt to provide the person surrendering the baby with the number of the baby’s identification bracelet to aid in linking the person to the baby at a later date, if reunification is sought. Such an identification number is an identification aid only and does not permit the person possessing the identification number to take custody of the baby on demand.

If a person possesses an identification number linking the person to a baby surrendered at a hospital and parental rights have not already been terminated, possession of the identification number creates a presumption that the person has standing to participate in an action. Possession of the identification number does not create a presumption of maternity, paternity, or custody.

Immunity for the Provider

A hospital, hospital employee, or hospital volunteer who accepts temporary emergency protective custody of a baby is absolutely immune from civil and administrative liability for any act of commission or omission in connection with the acceptance of that temporary emergency protective custody or the provision of care for the baby when left at the hospital while said baby is in the hospital’s temporary emergency protective custody, except for negligence or intentional acts.

Protection for Relinquishing Parent

The person who surrenders the baby shall not be required to provide any information pertaining to his or her identity, nor shall the hospital inquire as to same. If the identity of the person is known to the hospital, the hospital shall keep the identity confidential.

When the person who surrenders a baby manifests a desire to remain anonymous, the division shall neither initiate nor conduct an investigation to determine the identity of such person, and no court shall order such an investigation unless there is good cause to suspect child abuse or neglect other than the act of surrendering such baby.

In any prosecution for an offense of abandoning or endangering a child, it is a defense if the person surrendered care or custody of a baby directly to an employee or volunteer of a hospital emergency department inside of the emergency department provided that said baby is surrendered alive, unharmed, and in a safe place therein.

Effect on Parental Rights

Any hospital taking a baby into temporary emergency protective custody shall immediately notify the division and the State Police of its actions. The division shall obtain ex parte custody and physically appear at the hospital within 4 hours of notification unless there are exigent circumstances. Immediately after being notified of the surrender, the State Police shall submit an inquiry to the Delaware Missing Children Information Clearinghouse.

The division shall notify the community that a baby has been abandoned and taken into temporary emergency protective custody by publishing notice to that effect in a newspaper of statewide circulation. The notice must be published at least three times over a 3-week period immediately following the surrender of the baby unless the division has relinquished custody. The notice, at a minimum, shall contain the place, date, and time where the baby was surrendered; the baby’s sex, race, approximate age, identifying marks, and any other information the division deems necessary for the baby’s identification; and a statement that such abandonment shall be:

  • The surrendering person’s irrevocable consent to the termination of all parental rights, if any, of such person on the ground of abandonment
  • The surrendering person’s irrevocable waiver of any right to notice of, or opportunity to participate in, any termination of parental rights proceeding involving such child, unless such surrendering person manifests an intent to exercise parental rights and responsibilities within 30 days of such abandonment

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘guardian’ means a nonparent or an agency charged with caring for a child during the child’s minority.

The term ‘relative’ means any person within the immediate family, and any grandparent, uncle, aunt, first cousin, great-grandparent, grandaunt, granduncle, half-brother, or half-sister.

Purpose of Guardianship

Permanent guardianship models the requirements of ‘legal guardianship’ under the Adoption and Safe Families Act of 1997 (P.L. 105-89, 42 U.S.C., § 675(7)). Permanent guardianship is intended to create a relationship between a child and caregiver that is permanent and self-sustaining, and which creates a permanent family for the child without complete severance of the biological bond.

A Guardian’s Rights and Responsibilities

A guardian shall be granted such powers, rights, and duties that are necessary to protect, manage, and care for the child. The guardian of the child may exercise the same powers, rights, and duties respecting the care, maintenance, and treatment of the child as a parent would, except that the guardian of the child is not liable to third persons for acts of the child solely by reason of the guardianship relationship. The guardian is entitled to custody of the child and may establish the child’s place of abode within or outside the State.

The guardian shall provide the child with:

  • A physically and emotionally healthy and safe living environment and daily care
  • Education
  • All necessary and appropriate medical treatment, including, but not limited to, medical, dental, and psychiatric examinations, treatment, and/or surgery

The guardian shall make decisions regarding:

  • Education
  • Travel
  • All necessary and appropriate medical treatment, including, but not limited to, medical, dental, and psychiatric examinations, treatment, and/or surgery
  • The child’s right to marry or enlist in the armed forces
  • Representation of the child in legal actions
  • Any other matter that involves the child’s welfare and upbringing

The guardian shall:

  • Be responsible for the health, education, and welfare of the child
  • Comply with all terms of any court order to provide the child’s parents with visitation, contact, or information

The court, in its discretion, may expressly limit the duties and powers of the guardian as set forth in this chapter.

Qualifying the Guardian

A relative, foster parent, or guardian may serve as permanent guardian of a child and may petition the family court for a permanent guardianship order regarding a child that is not his, hers, or theirs. The proposed permanent guardian must:

  • Be emotionally, mentally, physically, and financially suitable to become the permanent guardian
  • Be a foster parent or guardian who has been caring for the child for at least 6 months, held guardianship for at least 6 months at the time of the filing of the petition, or be a relative
  • Have expressly committed to remain the permanent guardian and assume the rights and responsibilities for the child for the duration of the child’s minority
  • Have demonstrated an understanding of the financial implications of becoming a permanent guardian
Procedures for Establishing Guardianship

The Department of Services for Children, Youth and Their Families (DSCYF), a licensed agency, or guardian ad litem may petition the Family Court for a permanent guardianship order so long as the proposed permanent guardian or guardians consent to the appointment.

A petition for permanent guardianship shall contain the following information:

  • The grounds for the granting of an order of permanent guardianship
  • A statement outlining prior efforts to place the child for adoption, if applicable

The court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

  • One of the statutory grounds for termination of parental rights has been met.
  • Adoption of the child is not possible or appropriate.
  • Permanent guardianship is in the best interests of the child.
  • The proposed permanent guardian has been found to be suitable.
  • If the child is age 14 or over, the child consents to the guardianship or, if the child does not consent, just cause why the guardian should be appointed.
  • If the proposed permanent guardian is a foster parent or parents:
    • The child is at least age 12.
    • The proposed permanent guardian is the permanent guardian of one of the child’s siblings.
    • The child receives substantial governmental benefits for a serious physical and/or mental disability that would no longer be available to the child if parental rights were terminated or the child was adopted.

If the court determines that the requirements above have been met, then the court also shall determine, by a preponderance of evidence, the nature and extent, if any, of any contact, sharing of information, and/or visitation between the parent and the child. In making such a determination, the court shall apply the best interests of the child standard.vb

The parent or parents may voluntarily consent to the permanent guardianship provided the requirements above are met.

Contents of a Guardianship Order

If the court grants permanent guardianship, it shall include in that order provisions regarding visitation by the child with the child’s parents, contact by the child with his or her parents, and the sharing of information to be provided to the parents about the child, all based upon the child’s best interests. The order granting permanent guardianship may prohibit visitation, contact, or information if such prohibition is in the child’s best interests. The order granting permanent guardianship may incorporate an agreement reached by the parties.

Modification/Revocation of Guardianship

Permanent guardianship of a child terminates upon the permanent guardian’s death; upon adoption of the child; when the child reaches the age of majority; or as otherwise ordered by the court.

An order of permanent guardianship may be modified regarding contact, visitation, or sharing of information only upon a finding that there has been a substantial change in material circumstances and that modification is in the best interests of the child.

An order of permanent guardianship may be rescinded only upon a finding that there has been a substantial change in material circumstances and that rescission is in the best interests of the child.

A parent may not petition the court to rescind a permanent guardianship once granted under this chapter. When the permanent guardianship is rescinded by the court, custody of the child shall not automatically revert to the parent. At any subsequent hearing, the parent shall be considered with no greater priority than any other person or agency, and in entering any further order regarding the child the court shall apply the best interests of the child standard. If the permanent guardianship is rescinded, and DSCYF held custody immediately prior to the entry of the order, custody shall revert to DSCYF.

Upon a showing by affidavit of immediate harm to a child, the court may:

  • Temporarily stay a permanent guardianship order on an ex parte basis pending a hearing, and grant temporary custody of the child to DSCYF or temporary guardianship to a petitioner
  • Stay the visitation, contact, or information provisions of a permanent guardianship order on an ex parte basis pending a hearing
Eligibility for Guardianship Subsidy

DSCYF and the Department of Health and Social Services shall establish and operate the Kinship Care Program that promotes the placement of children with relatives when a child needs out-of-home placement, when such placement is in the best interests of the child, and when the child is not in the custody or care of the State.

The Kinship Care Program shall establish eligibility guidelines for kinship caregivers to qualify for kinship care benefits and services, including the following criteria:

  • The caregiver must be related to the child by blood or marriage within the fifth degree of consanguinity.
  • The caregiver must have guardianship of the child or actively pursue guardianship.
  • The child must reside in the home of the caregiver.
  • The caregiver must have income of no more than 200% of the Federal poverty level.
  • The parent or parents of a child in the kinship care program may not reside in the home of the kinship caregiver.
Links to Agency Policies

Delaware State Courts, Permanent Guardianship Overview

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘relative’ means any person within the immediate family and any grandparent, uncle, aunt, first cousin, great-grandparent, grandaunt or granduncle, half-brother or half-sister.

The Department of Services for Children, Youth and Their Families (DSCYF) and the Department of Health and Social Services shall establish and operate the Kinship Care Program that promotes the placement of children with relatives when a child needs out-of-home placement, when such placement is in the best interests of the child, and the child is not in the custody or care of the State.

Requirements for Placement with Relatives

Guidelines for eligibility for benefits and services under the Kinship Care Program include:

  • The caregiver must have guardianship of the child or actively pursue guardianship.
  • The child must reside in the home of the caregiver.
  • The caregiver must have income of no more than 200 percent of the Federal poverty level.
  • The parent(s) of a child may not reside in the home of the kinship caregiver.

DSCYF, in cooperation with the Department of Health and Social Services, shall establish and administer an emergency fund for eligible kinship caregivers who may receive a one-time emergency financial subsidy, within the limits of available funding, to assist in purchasing clothes, furniture, and other items necessary to prepare the household to accommodate the child or children.

Requirements for Placement of Siblings

A child-placing agency shall have a written placement policy describing how the agency addresses the needs of siblings to remain together.

Relatives Who May Adopt

DSCYF shall not be required to give its consent, written or otherwise, for the placement of a dependent child if the child is placed in the home of an adult individual who is by marriage, blood, or adoption the child’s great-grandparent, stepgrandparent, great-uncle or great-aunt, half-brother or half-sister, stepbrother or stepsister, stepparent, stepuncle or stepaunt, or first cousin once removed.

Requirements for Adoption by Relatives

No petition for adoption shall be presented unless, prior to the filing of the petition, the child sought to be adopted has been placed for adoption by the department, a licensed agency, or an authorized agency, and the placement has been supervised by the department or a licensed agency, but no such placement or supervision shall be necessary in the case of:

  • A child sought to be adopted by a stepparent
  • A child sought to be adopted by a blood relative, except for placements under the Interstate Compact for the Placement of Children
  • A child sought to be adopted by a guardian or permanent guardian as long as guardianship or permanent guardianship has been granted for at least 6 months prior to filing the adoption petition

An adoptive placement shall not be made until a preplacement evaluation that complies with the Delaware Requirements for Child Placing Agencies has been completed by the department or licensed agency.

The social study shall include information regarding the background of the child, the adoptive parents and their home, the physical and mental condition of the child, and the suitability of the placement.

In the case of a child to be adopted by a stepparent, guardian, or a blood relative, the petition for adoption shall be filed only after the child has resided in the home of the petitioner for at least 1 year; except that, on recommendation of the department or licensed agency, a petition may be filed after 6 months of continuous residence of the child in the petitioner’s home. In the case of adoption by a stepparent, guardian, or blood relative, it is not necessary that the child be legally free prior to the filing of the petition.

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 Division of Family Services will provide family preservation services.

The division must prepare and maintain a written case plan for each child under its supervision or custody that shall include, but not be limited to, a description of the child’s problems, the care and treatment of the child, and any other services to be provided to the child and the child’s family.

When Reasonable Efforts Are Required

The division will provide family preservation services to those families whose children are at imminent risk of out-of-home placement when it is determined that out-of-home placement can be avoided. However, the division’s highest priority in cases of abuse and neglect where an investigation is required shall be the health and safety of the child, and nothing herein will prevent the division from removing a child from the child’s home when it has determined that the child’s safety and well-being may be jeopardized by remaining in the family home.

Each case plan must be designed to achieve any placement of the child outside of the child’s home in the least restrictive setting available and in close proximity to the child’s home, consistent with the best interests and special needs of the child.

When Reasonable Efforts Are NOT Required

The division is not required to perform, but is not prohibited from performing, reunification and related services, as outlined in title 29, § 9003, when the grounds for termination of parental rights are those stated below:

  • The child has been abandoned.
  • The parent has been found by a court of competent jurisdiction to have:
    • Committed a felony-level offense against a child
    • Aided or abetted, attempted, conspired, or solicited to commit an offense listed above
    • Committed or attempted to commit the offense of Dealing in Children
    • Committed the felony-level offense of endangering the welfare of a child
  • The parent’s parental rights over a sibling of the child have been involuntarily terminated in a prior proceeding.
  • The parent has subjected the child to torture, chronic abuse, sexual abuse, and/or life-threatening abuse.
  • A child has suffered unexplained serious physical injury, death, or near death under circumstances that would indicate that the injuries resulted from the intentional or reckless conduct or willful neglect of the parent.

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

Any parent, custodian, or guardian may petition the family court for a standby guardianship order regarding a child for whom they have been given legal responsibility.

How to Establish a Standby Guardian

A petition for standby guardianship may be filed in the family court of any of the following counties:

  • The county in which one natural parent resides
  • The county in which a legal guardian of the child resides
  • The county in which one child resides

The court must find, prior to the granting of an order for standby guardianship, that there is a significant risk that the parent, legal custodian, or guardian will die, become incapacitated, or become debilitated as a result of a chronic condition or terminal illness within 2 years of the filing of the petition as certified by an attending physician.

If an order for standby guardianship is granted, the order shall determine the triggering event for the standby guardianship by specifying whether:

  • The authority of the standby guardian is effective on the receipt of a determination of the petitioner’s incapacity or debilitation, or on the receipt of the certificate of the petitioner’s death.
  • The authority of the standby guardian may become effective earlier on written consent of the petitioner.
How Standby Authority is Activated

Upon the occurrence of a triggering event set forth in an order appointing a standby guardian, the appointed standby guardian shall be empowered to assume the standby guardian duties immediately.

If the triggering event is the incapacity or debilitation of the parent, legal custodian, or guardian, the attending physician shall provide a copy of that physician’s determination to the appointed standby guardian if the guardian’s identity is known to the attending physician.

Within 30 days following the assumption of guardianship duties, the standby guardian shall petition the court for confirmation. The confirmation petition shall include a determination of incapacity or debilitation or a death certificate, as appropriate. Absent a judicial finding or determination of unfitness, the standby guardian’s power and authority shall commence immediately upon the occurrence of the triggering event and shall continue unimpeded until the court may hear the standby guardian’s petition for confirmation.

The court shall confirm an appointed standby guardian previously named and otherwise qualified to serve as guardian unless there is a judicial determination of unfitness with regard to the appointed standby guardian.

Involvement of the Noncustodial Parent

Citation: Ann. Code Tit. 13, § 2367(a)-(b)
When the parent is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the court shall find that the standby guardianship is in the child’s best interests, and:

  • The child would be dependent, neglected, or abused in the care of the other parent.
  • The other parent of the child is deceased.
  • The other parent’s parental rights have been terminated.
  • The other parent consents to the appointment of a standby guardian.

When the legal custodian or guardian is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the court shall find that the standby guardianship is in the child’s best interests, and as to each parent:

  • The child remains dependent, neglected, or abused in the parent’s care.
  • The parent of the child is deceased.
  • The parent’s parental rights have been terminated.
  • The parent consents to the appointment of a standby guardian.
Authority Relationship of the Parent and the Standby

A standby guardianship enables a parent, custodian, or guardian suffering from a progressive chronic condition or a terminal illness to make plans for the permanent future care or the interim care of a child without terminating parental or legal rights.

When the duties of the standby guardian begin, the appointed standby guardian will share authority with the parent, legal custodian, or guardian of the minor child unless the petition states otherwise.

Withdrawing Guardianship

A standby guardian may decline the appointment at any time before the assumption of that standby guardian’s duties by filing a written statement to that effect with the court, with notice to be provided to the petitioner and to the minor child if the latter is age 14 or older.

A parent, legal custodian, or guardian may revoke a standby guardianship by executing a written revocation, filing it with the court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation.

A person who is judicially appointed as a standby guardian may renounce the appointment at any time by:

  • Executing a written renunciation
  • Filing the renunciation with the court
  • Promptly notifying in writing the parent, legal custodian, or legal guardian of the renunciation

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

CLICK HERE To Ask A Delaware CPS Attorney a FREE Question

Ask an Attorney a FREE question about your CPS case in Delaware.

Even if there are no questions listed here yet, please go ahead and ask yours. An attorney will be invited to answer questions here soon.

No questions found.