Motion To Dismiss – CPS – Delaware

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

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

 

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

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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

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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

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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

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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

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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

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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

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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

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Current Through November 2012

This issue is not addressed in the statutes reviewed.

Court Hearings for the Permanent Placement of Children

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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.

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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

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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

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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

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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

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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

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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

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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

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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

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT