How to write a Motion To Dismiss for DCF / CPS Juvenile Court In Florida

The goal here is to show the court that the assessment of harm and neglect against you should have been UNFOUNDED (you are not guilty) and therefore the court has no jurisdiction over the child and should close the case.

You will also want to show that the intake worker lied and coerced you which means that the judges decisions to make your child a ward of the court was based on more than hearsay (which is legal in most juvenile courts) but was based on distortion, misrepresentation, lies, and omission. This would mean that the judge would have to reconsider the evidence.

If you actually DID neglect or harm your child according to the state statutes, and they have shown evidence of it, this will not work for you.

Check out our LEGAL DISCLAIMER before you get started.

Step 1. Download this FREE program to write your Motion To Dismiss in.

It is called Open Office.

Step 2. Download this template and open it using the Open Office program.

Step 3. Download this EXAMPLE to see what yours should look like.

CLICK HERE to see an online version - Motion To Dismiss

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

JUVENILE DEPARTMENT

In the matter of

Haiden Tipaloo

Jaiden Tipaloo

Kaiden Tipaloo

Minor Children,

Court Numbers: 16JU00258

16JU00325

16JU00765

MOTION TO DISMISS DUE TO LACK OF JURISDICTION

Comes now Petitioner Jeramey Tipaloo (Father) based upon the attached Declaration, moves the court for a Judgment dismissing the above-captioned cases.

DATED this day of November _____, 2016

_____________________________________

Petitioner, signature

Submitted by:

________________________________________________________________________________

Petitioner, Print Name Address or Contact Address

________________________________________________________________________________

City, State, Zip Telephone or Contact Telephone

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

JUVENILE DEPARTMENT

In the matter of

Haiden Tipaloo

Jaiden Tipaloo

Kaiden Tipaloo

Minor Children

Court Numbers: 16JU00258

16JU00325

16JU00765

MOTION TO DISMISS DUE TO LACK OF JURISDICTION

I, Jeramey Tipaloo (Father), Petitioner in the above proceeding, make this declaration in support of my motion to dismiss the above-captioned cases. I request the court dismiss these cases for the following reasons:

On January 12th, 2016, at 2 p.m.,CPS intake caseworkers Brooke Sinclair, Megan Favreau and (4) Florence P.D. Police Officers made face to face contact with Jeramey J. Tullis.

Intake Worker Brooke Sinclair stated at the door that “We are here to investigate a report of child abuse and neglect,”

I felt I had nothing to hide and was sure that my children had never been abused or neglected, welcomed the intake caseworkers and Florence P.D. Officers into the home.

I have a naturaly loud voice. Mix that with the emotional stress of 4 police and 2 caseworkers entering my home and accusing me of neglect and abuse of my children. My demeanor was as any normal father would be to protect his children from being taken away. My voice was loud and demanding of proof of harm.

The intake worker would not give me any specifics of how I had harmed my children.

I stationed myself leaning backwards on the kitchen bar with my legs crossed and demanded the caseworker for documentation of proof of the allegations.

The intake worker, Brooke Sinclair, sat on the couch silent, looking aimlessly around at coworker Megan Favreau and police officers for answers. 

Meanwhile the two older boys were scared of the situation and kept behind my legs where they felt safe. The oldest boy was intuitivly following my demenor by peeking out from my legs and telling the intakeworker “GO! GO!”

The intake worker made a decision from that scene that there would be inpending danger caused to the children and that it was an emergency to take all 3 children.

I called my wife at work saying “Come home quick! CPS is here and they are taking our children.”

She arrived at home and met the intake workers Brooke Sinclair, and Megan Favreau outside on front step. Brooke Sinclair said “There is reasonable cause to believe that there is a threat of harm in the household.”

When my wife entered the home, she saw me leaning against the kitchen island with my back and Haiden and Jaiden are behind me giggling and playing with each other. They were running around with smiles on their faces while playing

The youngest child was sound asleep in his bassinet in the bedroom.

Intake worker Brooke Sinclair stated to my wife “The children were cowering behind the father.”

My wife asked the CW for a CPS handbook so that we could know our rights. The CW handed her a pamphlet that explained nothing of what was happening at this time and why she had the right to take our children.

My wife asked to speak to Brooke Sinclair’s supervisor (Julie Harper).

The caseworker got on her phone and walked out towards the driveway. After a few minutes she hung up the phone and returned to the front step.

My wife asked why she did not allow her to speak to her supervisor while she had her on the phone.

The CW stated she was not allowed to let her use her phone and she preceded to give my wife her supervisors business card.

My wife immediately attempted to call the supervisor from the house phone and got the answering machine. She then left a voicemail for Julie Harper to contact her as soon as possible.

My wife asked for a court order and the caseworker walked out to her car and grabbed a piece of paper and wrote “Threat of Harm” on it.

Meanwhile, I called his Domestic Violence Advocate Pamela Long at Siuslaw Outreach Services. I stated that Pamela wanted to speak to Brooke Sinclair.

The CW refused to talk to her and stated “I do not have time to talk to her.”

One of the Police officers got on the phone and advised Pamela that CPS was here and they are taking the children into CPS care.

The DV advocate asked to speak to me again, in return she asked me to hand the phone to the CW and that she needed to speak to her.

I handed the CW the phone. As soon as she had it in her hand, she hung it up refusing to speak to the Domestic Violence Advocate.

We both objected to the caseworker’s decision. The Florence Police Department officers and CPS caseworkers both stated that if we interfere with the taking of the children, we would both would be arrested.

Both caseworkers and a officer all cornered Haiden, Jaiden, and my wife all in the laundry room. The intake caseworker said to my wife, “Meaghan if you come with us and leave Jeramey we can get you and your boys into a Hotel room tonight and you can keep your kids, but Jeramey cannot come and cannot have contact with you or the children.”

My wife begged with the caseworker, “Please don’t take our boys, Our boys need us, you don’t how how much trauma you are causing them right now.”

We asked if we could feed the children the meal I had just made for them. The CW said “No we will get them something to eat.”

The caseworker proceeded to get Haiden and Jaiden into the bedroom to get clothes on them.

My wife then asked the CW “Can I please breastfeed our newborn please before you take him? You just woke him up and I do not have a breastpump.

The CW said “No, we have some formula at the DHS office we could give him.”

The second CW, Megan Favreau went into the master bedroom grabbed the baby (Kaiden) from his bassinet where he was asleep. Immediately put him into the car seat and could not figure out how to buckle the infant into the car seat. She then took him to the CPS vehicle.

While we were in the boys bedroom getting the boys clothes, the CW came into the room with clothes too small from a bag marked S.O.S. for donation and put them on the children.

The CW asked for our car seats to transport them and began searching around in closets and rooms for them without any permission. We pulled the car seats out of the living room closet. The CW’s then put the children into the back of their car.

The CW suggested that my wife go with the police escort up to the DHS office in Florence to speak with her more about the reason why CPS was taking our children into protective care.

My wife offered to get some juice for the kids but the CW would not wait for her. I then gave it to a police officer to give to the CW.

My wife took the escort ride up to the local DHS office in Florence. She then waited for the CW half an hour in a room by herself. All she could hear was our children screaming at the top of their lungs.

The intake CW entered the room and said that she had me on the speaker phone. I was distraught and was crying and blaming myself for the children being taken away. My loudness again was taken as proof that there was a impending safety threat.

The CW then preceded to use coercion by telling my wife “You should leave Jeramey and if you want any chance of getting your children back you should sign these papers.” She asked for a copy of them and has never received the copies to this date.

We object to the coercion from the CW to get my wife to sign a plea of guilt at the DHS office in Florence Oregon. She did not know at that time that that paper she signed was a plea of guilt. She hearby resinds her signiture on this form. “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. Florida v. Bostick, 501 US 429 (1991). Coercion can be mental as well as physical. Blackburn v. Alabama, 361 US (1960)

Again, neither of us were told what specific impending threat of harm caused our children to be taken away.

I asked the CW if our children had anything to eat. The CW stated “ We gave them some snacks.”

The pleading filed by the agency contained no information indicating any actual imminent danger to our children or that any one of them had been injured on the day they were removed. The allegations and contentions in the pleading filed by the agency had no factual support. This went against the requirement of 419B.866 (3)(d)

The pleading filed by the agency stated the reason that the children were taken as, “One or both parents’ or caregivers’ behavior is violent and/or they are acting (behaving) dangerously.” CPS has never shown this court any evidence that there was any violence involved between us at any time. The evidence that was submitted to the court only showed that there were arguments and yelling. Never any violence. This went against the requirement of 419B.866 (3)(d)

Oregon law provides that a child may be removed without a court order only if, based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse. Moreover, the agency must show that it is contrary to the welfare of the child to remain in our home, and consistent with the circumstances and ensuring that the child is safe, that reasonable efforts were made to prevent or eliminate the need for removal from their home.

After a child is removed without a court order, Oregon law mandates that CPS show that: (1) there is a continuing danger to the physical health or safety of the child if the child is returned home, or there is evidence of sexual abuse and the child is at substantial risk of future sexual abuse; (2) it is contrary to the child’s welfare to remain in the home; and (3) reasonable efforts were made to prevent or eliminate need for removal.” All of these things must be shown by the agency in order to meet their burden of proof under Oregon Juvinile laws.

CPS did not show this court any one of these mandated requirements were fulfilled because they did not first meet their burden of proof with evidence that there was any violence. This went against the requirements of 419B.866 (3)(c)(d)

CPS could not show that there is a continuing danger to the physical health or safety of the child if the child is returned home or that it is contrary to the children’s welfare to remain in the home because they have never proven that there was a safety threat of violence in the first place. This went against the requirements of 419B.866 (3)(c)(d)

If there is no imminent or inpending dangers such as “severe abuse” “severe harm” according to the definitions of 419B.005, OAR 413-015-0425, OAR 413-015-0115, and OAR 413-015-0115 (47) then there is no safety threat. If there is no safety threat, then this allegation of “One or both parents’ or caregivers’ behavior is violent and/or they are acting (behaving) dangerously.” should have been UNFOUNDED.

CPS has failed to fulfill the requirements of 419B.866 (3)(c)(d) in that they failed to show the court WHAT imminent abuse or severe harm would have befell the children if left at home. Oregon law states that that the intakeworker should be able to describe it. CPS failed to describe it as per OAR 413-015-0115. If it cannot be described then the accusations should have been UNFOUNDED.

The intake worker and the CW have never clearly described and articulated what severe harm was imminant or about to happen. The intake worker and CW have clearly based her finding on a gut feeling.

OAR 413-015-0115 Definitions

  1. Observable” means specific, real, can be seen and described. Observable does not include suspicion or gut feeling.”

CPS knowingly misled the Court with statements in the caseworker’s sworn affidavit and with sworn testimony at the ex parte hearing required by the Oregon Juvinile Code. CPS knowingly misled the court with lies of ommission by not showing the court that there was NO violence in the mother and fathers relationship and there was no violence on the day of the children’s abduction. There was no imminent danger to the children on the evening that the children were removed.

By intentionally and consciously ommiting this important information, shows a doing wrong for dishonest purpose. This went against the requirements of 419B.866 (3)(a)

419B.866 Signing pleadings required; effect of signing or not signing.

(3)(a) Except as otherwise provided in paragraph (d) of this subsection, by signing, filing or otherwise submitting an argument in support of a petition, answer, motion or other paper, an attorney or party makes the certifications to the court identified in paragraphs (b), (c) and (d) of this subsection and further certifies that the certifications are based on the person’s reasonable knowledge, information and belief formed after the making of any inquiry that is reasonable under the circumstances.

(b) A party or attorney certifies that the petition, answer, motion or other paper is not being presented for any improper purpose including, but not limited to, harassing or causing unnecessary delay or needless increase in the cost of litigation.

(c) An attorney certifies that the claims and other legal positions taken in the petition, answer, motion or other paper are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.

(d) A party or attorney certifies that the allegations and other factual assertions in the petition, answer, motion or other paper are supported by evidence. An allegation or other factual assertion that the party or attorney does not wish to certify is supported by evidence must be specifically identified. The party or attorney certifies that the party or attorney reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery. [2001 c.622 §20]

This case should have been closed at screening because it did not constitute a report of child abuse or neglect, as defined in ORS 419B.005

(4) Close at Screening: A report will be closed at screening if one of the following subsections applies:

(a) The screener determines that information received:

(A) Does not constitute a report of child abuse or neglect, as defined in ORS 419B.005 or, when applicable, Oregon Laws 2016, chapter 106, section 36, and the screener determines:

  1. That the information describes behaviors, conditions, or circumstances that pose a risk to a child;

Oregon Laws 2016, chapter 106, section SECTION 38. (1) The investigation conducted by the Department of Human Services under section 37 of this 2016 Act must result in one of the following findings:

(a) That the report is substantiated. A report is substantiated when there is reasonable cause to believe that the abuse of a child in care occurred.

(b) That the report is unsubstantiated. A report is unsubstantiated when there is no evidence that the abuse of a child in care occurred.

  1. That the report is inconclusive. A report is inconclusive when there is some indication that the abuse occurred but there is insufficient evidence to conclude that there is reasonable cause to believe that the abuse occurred.

SECTION 39. ORS 419B.005 is amended to read: 419B.005. As used in ORS 419B.005 to 419B.050, unless the context requires otherwise:

(1)(a) “Abuse” means:

(A) Any assault, as defined in ORS chapter 163, of a child and any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.

(B) Any mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.

(G) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child’s health or welfare.

Neither the intakeworker or the caseworker have reported in any way that the children suffered from any “assault”, “Physical injury”, “observable and substantial impairment” or “ substantial risk of harm”. This report should have been unsubstantiated or NOT FOUNDED. There was insufficient information to support this being a disposition of child abuse or neglect.

The Case Progress Evaluation Summary reads; “On January 5th, 2016, the agency received a call of concern for the children in the care of Mr. Tullis and Ms. Gotterba. The agency responded on 1/13/2016 and CPS caseworkers Brook Sinclair, Megan Favreau and Florence Police Officers made face to face contact with Mr. Tullis at his residence in Florence, Oregon.”

The law at ORS 413-015-0210 states that the caseworker must make contact within 5 calendar days. The law also states that the information from an informant must constituted a report of child abuse or neglect as defined in ORS 419B.005. If it does not, then the report must be closed at screening. No where in the caseworkers report to the court or in the original petition to the court did DHS or CPS show that they had met these requirements.

According to 413-015-0210

Determining Department’s Response and Required Time Lines for CPS Information

(1) After the screener completes screening activities required by OAR 413-015-0205, and the screener determines the information received is CPS information, the screener must determine the Department response, either CPS assessment required or close at screening. If a CPS assessment is required, the screener must then determine the time line for the Department response, either within 24 hours or within five calendar days.

(2) CPS assessment required. A CPS assessment is required if:

(a) The screener determines that information received constitutes a report of child abuse or neglect, as defined in ORS 419B.005, and the information indicates:

(A) The alleged perpetrator is a legal parent of the alleged child victim;

(B) The alleged perpetrator resides in the alleged child victim’s home;

  1. The alleged perpetrator may have access to the alleged child victim, and the parent or caregiver may not be able or willing to protect the child;

(3) Response Time Lines. If the screener determines that a CPS assessment is required, the screener must:

(a) Determine the CPS assessment response time line. The time line for the Department response refers to the amount of time between when the report is received at screening and when the CPS worker is required to make an initial contact. When determining the response time, the screener must take into account the location of the child, how long the child will be in that location, and access that others have to the child.

(A) Within 24 hours: This response time line is required, unless paragraph (B) of this subsection applies, when the information received constitutes a report of child abuse or neglect as defined in ORS 419B.005 or, when applicable, Oregon Laws 2016, chapter 106, section 36.

(B) Within five calendar days: This response time line must only be used when the screener can clearly document how the information indicates the child’s safety will not be compromised by not responding within 24 hours and whether an intentional delay to allow for a planned response is less likely to compromise the safety of the child.

(4) Close at Screening: A report will be closed at screening if one of the following subsections applies:

(a) The screener determines that information received:

(A) Does not constitute a report of child abuse or neglect, as defined in ORS 419B.005

419B.005 Definitions. As used in ORS 419B.005 to 419B.050, unless the context requires otherwise:

(1)(a) “Abuse” means:

(A) Any assault, as defined in ORS chapter 163, of a child and any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.

(B) Any mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.

(D) Sexual abuse, as described in ORS chapter 163.

(F) Negligent treatment or maltreatment of a child, including but not limited to the failure to provide adequate food, clothing, shelter or medical care that is likely to endanger the health or welfare of the child.

(G) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child’s health or welfare.

I object to the intake workers witch hunt to try and find something to pin on me. The law states that there must already be a known exigent circumstance existing before conducting a search or seizure without a warrant or court order. This exigent circumstance must directly be associated with harm to the childs life or limb. “Government officials are required to obtain prior judicial authorization before intruding on a parent’s custody of her child unless they possess information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’” Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001)

I object that the intake worker has clearly violated our children’s Fourth Amendment rights. A man demanding his rights and his childrens rights with a loud voice does not equal “violence”.The father was not directing his negative attention to the children. The father was not violently in a physical fight with anyone where a child could get in the way and be harmed. The children had no bruises or marks to show that abuse had already happened to them and that it was impending that it would happen again soon. Two children playing behind their fathers legs does not equal “cowering” as the CW insinuates. Two children hiding behind their fathers legs when 6 people are in the same room arguing with the parent does not equal impending doom, exigent circumstances or imminent danger to the children.

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

Being there was no evidence of an imminent threat of harm to any one of our children, the CPS investigator violated our childen’s clearly established fourth amendment rights.

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Our children are undeniably entitled to stay with their parents without governmental interference.

The CPS investigater had neither a warrant nor probable cause to seize our children.

In order to prevail, therefore, she must have demonstrate a governmental interest sufficient to justify dispensing with constitutional protections. The record before us is devoid of such.

As previously noted, there was no evidence of danger to our children sufficient to implicate the state’s interest in protecting the health, safety, and welfare of them as minors.

You cannot seize childern simply because their parent is yelling.

The social workers were specifically charged with protecting children where there were allegations of abuse. There is no indication in this record of any threat to our children’s safety, nor was she investigating allegations that our children had previously suffered abuse at the hands of their parents.

Under the circumstances, our children enjoyed a clearly established right to maintain their relationship free from interference by state actors.

According to OAR 413-015-0400, when the agency makes a determination of the presence of a safety threat, there are 5 factors that all have to be met and present at the same time in order for it to be FOUNDED.

  1. A family condition is out-of-control.

According to OAR 413-015-0425 “Out of control” means”

  1. (d) “family behaviors, conditions, or circumstances that can affect a child’s safety are unrestrained, unmanaged, without limits or monitoring, not subject to influence or manipulation within the control of the family, resulting in an unpredictable and chaotic family environment.”

The father was in control of himself and restrained by leaning against the kitchen bar and crossing his legs. He only argued his points with a loud voice. He did not threaten anyone, throw things, or break things. He was simply reacting to a situation where officials were trying to take his children without due cause. Even if these actions and attitudes resulted in a chaotic family environment, it did not fullfill the other factors that would have entitled the intakeworker to take the children.

  1. A family condition is likely to result in harm.

According to OAR 413-015-0115 “Harm” means:

  1. “….. any kind of impairment, damage, detriment, or injury to a child’s physical, sexual, psychological, cognitive, or behavioral development or functioning. “Harm” is the result of child abuse or neglect and may vary from mild to severe.”

A father leaning up against a kitchen bar did not show any actions that would likely result in direct harm to his children.

  1. The severe effect is imminent: reasonably could happen soon.

According to OAR 413-015-0115 (47) “Severe harm” means:

(a) Significant or acute injury to a child’s physical, sexual, psychological, cognitive, or behavioral development or functioning;

(b) Immobilizing impairment; or

  1. Life threatening damage.

Even if it were true that the children were cowering behind their father, the intake worker and CW have never seen anything even close to a severe effect or severe harm that was imminent.

  1. The family condition is observable and can be clearly described and articulated.

OAR 413-015-0115 Definitions

  1. Observable” means specific, real, can be seen and described. Observable does not include suspicion or gut feeling.”

The intake worker and the CW have never clearly described and articulated what severe harm was imminant or about to happen. The intake worker and CW have clearly based her finding on a gut feeling.

  1. There is a vulnerable child.

According to OAR 413-015-0115 “Vulnerable child” means:

(53) …..a child who is unable to protect himself or herself. This includes a child who is dependent on others for sustenance and protection.

A “vulnerable child” is defenseless, exposed to behaviors, conditions, or circumstances that he or she is powerless to manage, and is susceptible and accessible to a threatening parent or caregiver.

Vulnerability is judged according to physical and emotional development, ability to communicate needs, mobility, size, and dependence.

According to OAR 413-015-1000

Threat of harm, includes all activities, conditions, and circumstances that place the child at threat of severe harm of physical abuse, sexual abuse, neglect, mental injury, or other child abuse or neglect.

According to OAR 413-015-0425

Present Danger is an IMMEDIATE, SIGNIFICANT, and clearly observable severe harm or threat of severe harm occurring in the present.

According to OAR 413-015-0425

Impending Danger is a state of danger in which family conditions, behaviors, attitudes, motive, emotions and /or situations are out of control and , while the danger may not be currently active, it can be anticipated to have severe effects on a child at any time.

The key word here is severe as in SEVERE HARM and SEVERE EFFECTS.

According to OAR 413-015-0115 statute (47) “Severe harm” means:

(a) Significant or acute injury to a child’s physical, sexual, psychological, cognitive, or behavioral development or functioning;

(b) Immobilizing impairment; or

(c) Life threatening damage.

The CPS’s evaluation should have been decided as UNFOUNDED according to Oregon law and CPS’s own rules. This claim of Neglect and Threat of Harm should never have been brought to this court because it does not fit the statutory definition of child abuse or neglect.

CPS has not shown evidense in any manner that our children have suffered ANY severe harm. Nor have they shown that any severe effects were imminent such as:

  • Significant or acute injury
  • Immobilizing impairment
  • or Life threatening damage

CPS has never proven that our current mental condition placed or will place our children at a threat of severe harm.

The CW has also stated in her Ongoing Safety Plans and the Child Welfare Case Plans that,”There is a long history of domestic violence occuring between Meaghan Gotterba and Jeramy Tullis. The children have wittnessed the DV betweem their parents.”

Although arguing or talking in foul language is not appropreate in front of children or anywhere else, arguing is not part of CPS’s own examples of this mentioned safety threat. CPS has never shown evidence that any of our children “…demonstrates an observable, significant effect.” The term “Family Discord” is not even used in the discriptions of any of the Oregon Safety Threats.

Below is the examples of this peticular Safety Threat as brought out in CPS’s own Screening and Assessment Handbook, Chapter II –

  • Examples:
  • Violence includes hitting, beating or physically assaulting a child, spouse or other family member.
  • Violence includes acting dangerously toward a child or others, including throwing things, brandishing weapons, aggressively intimidating and terrorizing. This includes making believable threats of homicide or suicide.
  • Family violence involves physical and verbal assault on a parent, caregiver or member of the child’s household in the presence of a child; the child witnesses the activity; and the child demonstrates an observable, significant effect.
  • Family violence occurs and a child has been assaulted or attempted to intervene.
  • Family violence occurs and a child could be inadvertently harmed even though the child may not be the actual target of the violence.
  • Parent/caregiver whose behavior outside of the home (e.g., drugs, violence, aggressiveness, hostility) creates an environment within the home which threatens child safety (e.g., drug labs, gangs, drive-by shootings).
  • Due to the batterer’s controlling behavior, the child’s basic needs are unmet.

The federal Adoption and Safe Families Act (ASFA) and Oregon law require Child Welfare caseworkers to make efforts to prevent the need to remove a child from his or her home prior to placing the child in protective custody, to return the child to a parent, and to achieve permanency for a child who cannot be returned to his or her home.

The intakeworker’s wrongful conduct violated clearly established law. Genuine issues of material fact exist regarding the reasonableness of the intakeworker’s conduct.

This blatant disregard for the childrens 4th amendment rights, the states rules and regulations and Federal laws has striped the intakeworker and caseworker of their Qualified Immunity. They both have been trained in their scope of work and clearly went against what a reasonable person would have known.

Qualified immunity shields government officials from liability when they are acting within their discretionary authority and their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982);

Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . . .” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)

I object to the intakeworkers “fishing expedition” and “witch hunt” to try and find a reason to take our children. Even if it was true that the children were “cowering” behind me, the intakeworker clearly did not see a exigent circumstances that would harm life or limb.

Under “Reasons Services Could Not be Provided to Prevent removal Of the Child from the home” in the report to the court, the CW gives the reason “During the initial assessment, Mr Tullis was angry and volatile with the DHS intakeworker. The agency was unable to develop an in-home plan due to Mr Tullis’ lack of cooperation.

Nowhere in the law of OAR 413-015-0400 and nowhere in CPS statutes does it require that an in-home-plan be put into place if there is no reason­able cause to believe that child abuse or neglect occurred or was about to occur soon.

Nowhere in the law of OAR 413-015-0400 and nowhere in CPS statutes does it require that an in-home plan should be put into place if the parent is angry that someone is there trying to take their children away.

It is to only be put into place IF the intakeworker has reason­able cause to believe that child abuse or neglect occurred or it is going to occur soon.

This claimed exigent is less than the real, genuine or bona fide emergency required by the constitutions, federal and state.

The only reason that the intakeworker took the children was because the fathers yelling was of inconvenience to the intakeworker and not of exigent circumstances relating to the children. The fathers yelling was only an excuse to take the children instead of real cause mandated by law.

Being there was NO true exigent circumstances, the caseworker would need a warrant or court order to take the children. If she had persuded a court for a court order or warrant, It would have been based on lies and ommissions as the original petition to the court was.

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

A due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not supported by the requisite proof of parental unfitness. Quilloin v. Walcott, 434 U.S. 246, 255, (1978)

The CW has never presented to this court any evidence that was explicitly documented that showed any reasonable efforts were made to prevent removal of two boys that were playing behind their father legs and one infant sleeping in its bed. Just using one of Oregons 16 safety threats title as a reason to take a child and not backing it up with evidence does not fulfill the letter of the law.

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

CPS was never required by the court to provide specific and detailed documentation to prove that Reasonable Efforts were in fact made. 42 C.F.R. Section 1356.21(d) requires documentation of judicial determinations concerning both reasonable efforts and contrary to the welfare findings. They are to be explicitly documented on a case by case basis and so stated in the court order. Facts substantiating the legal conclusion must be stated in the order. Lack of compliance results in denial of federal funds for the child’s foster placement.

According to OAR 413-040-0013

Every 30 days the Ongoing Safety Plan is to be reviewed and updated to be current. Any previously identified Safety Threats that have been reduced or eliminated will be shown to be so.

The caseworker, Stacie Navarro, has never done this.

According to OAR 413-040-0013

Every 30 days there is to be a face-to-face review with parent on progress toward achieving the current Conditions For Return and Expected Outcomes.

This has never been done by the caseworker.

According to OAR 413-040-0016 and OAR 413-040-0010

Every 90 days (or any time within the 90 days) there is to be a full face-to-face current Case Plan review with the parent. This would include reviewing and updating the Ongoing Safety Plan, Action Agreement, Expected Outcomes, and Conditions For Return.

The fact is, after the first separate Action Agreements were signed back in 3/10/16 by both parents, the caseworker has NEVER visited our home or updated anything thru a face-to-face with either parent. To date over 6 months have passed by.

This means that the caseworker has committed malfeasance 28 times (14 times with each parent.)

In fact, the caseworker STILL to this date has not talked to the parents specifically about the conditions for return, expected outcomes, nor has she talked to the parents personally about a case plan where everything is updated. She also has not updated any visitation plan with them. They have never seen any visitation plan other than the original one made at intake almost 6 months ago. In fact, the visitation plan dated 3/2/16 submitted to court in the case file was not even signed by the caseworker or the parents.

And because of the CW’s lack of mandated monthly updates, this means that the caseworker presented false information in the CRB on 7/7/16 and the Oregon Family Decision Meeting on 9/15/16. This also means that the CW passed on false information to the caseworker’s supervisor. This also means that false information was presented to Dr. Basham for the Psych Evaluations by stateing that the parents were in a violent relationship.

And because of the caseworker, Stacie Navarro, not doing her mandated obligations of updating anything, she has thus given false testimony to this court at every hearing so far.

The CW lack of updating the case causes the court to not know the truth. This is basicly a lie of ommission. A lie of omission is to remain silent when ethical behavior calls for one to speak up. A lie of omission is a method of deception and duplicity that uses the technique of simply remaining silent when speaking the truth would significantly alter the other person’s (the judge’s) capacity to make an informed decision.

The United States Court of Appeals for the Ninth Circuit said it best, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

We are therefore establishing ON THE RECORD that we strongly challenge that any lawfull reason existed to remove our children.

Therefore, we strongly challenge this courts jurisiction over this matter.

We withdraw and rescind any and all signatures to “voluntary” safety and service plans or any other “agreements”. Such signatures were obtained through duress, threat, and coercion. We now explicitly withdraw any consents we gave.

We withdraw any plea of guilt that we were coerced and tricked into signing.

I am petitioning the court to dismiss jurisdiction, close the case, and order that the children are returned home immediately.

I hereby declare that the above statements are true and complete to the best of my knowledge and belief. I understand they are made for use as evidence in court and I am subject to penalty for perjury.

DATED this day of ___________, 20____ .

Petitioner (signature) _________________________________________

Print Name _________________________________________________

Address or Contact Address ____________________________________

City, State, Zip Code __________________________________________

Telephone or Contact Telephone ________________________________

STATE OF OREGON           )

)     ss.

County of Lane )

SIGNED AND SWORN to before me on this ______ day of ______________, 2016.

_____________________

SEAL

Attorney’s signature______________________________________________

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

JUVENILE DEPARTMENT

In the matter of

Haiden Tipaloo

Jaiden Tipaloo

Kaiden Tipaloo

Minor Children,

Court Numbers: 16JU00258

16JU00325

16JU00765

MOTION TO DISMISS DUE TO LACK OF JURISDICTION

Based upon the Motion to Dismiss filed by the plaintiff , IT IS HEREBY ORDERED these cases be dismissed

___ resolving and disposing of all remaining issues and parties (general)

___ disposing of defendant (s) _______________________________________________________ (limited) and it is further ordered this case is dismissed

___ with prejudice

___ without prejudice

DATE: ___________________

______________________________________________

CIRCUIT COURT JUDGE

 

Step 4. Start writing your story of who you are and how you got involved with CPS using the format of the template. Everything that is printed in red must be changed or taken off.

Step 5. When it comes time to talk about a certain subject, use the case law citations and CPS statutes and state law below to back your claims.

Florida

 

Statutes

General Child Welfare Provisions

Links to State and Tribal Child Welfare Law and Policy

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Current Through March 2015

Statutes

http://www.flsenate.gov/Laws/Statutes

  • Adoption: Title VI, Chapter 63
  • Child Protection: Title V, Chapter 39, Parts I through III
  • Child Welfare: Title V, Chapter 39, Parts IV through XII
  • Guardianship: Title V, Chapter 39, § 39.6221
  • Youth Services: Title XXX, Chapter 409, § 409.1451
Regulation/Policy

https://www.flrules.org/gateway/Department.asp?DeptID=65external link

See Division Number 65Chttp://www.dcf.state.fl.us/admin/publications/policies.shtmlexternal link

Other Resources

Florida Rules of Courtexternal link

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: It is considered domestic violence in the presence of a child if an offender is convicted of a primary offense of domestic violence, and that offense was committed in the presence of a child under age 16 who is a family or household member with the victim or perpetrator.

Consequences

When domestic violence is committed in the presence of a child, the subtotal sentence points are multiplied by 1.5.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause a child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions.

‘Harm’ to a child’s health or welfare can occur when a person inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. Such injury includes, but is not limited to:

  • Willful acts that produce specific serious injuries
  • Purposely gives a child poison, alcohol, drugs, or other substances that substantially affect the child’s behavior, motor coordination, or judgment or that result in sickness or internal injury
  • Leaves a child without adult supervision or arrangement appropriate for the child’s age or mental or physical condition
  • Uses inappropriate or excessively harsh discipline that is likely to result in physical injury, mental injury as defined in this section, or emotional injury
  • Commits or allows to be committed sexual battery against the child
  • Allows, encourages, or forces the sexual exploitation of a child
  • Abandons the child
  • Neglects the child
  • Exposes a child to a controlled substance or alcohol
  • Uses mechanical devices, unreasonable restraints, or extended periods of isolation to control a child
  • Engages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child
  • Negligently fails to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another
  • Has allowed a child’s sibling to die as a result of abuse, abandonment, or neglect
  • Makes the child unavailable for the purpose of impeding or avoiding a protective investigation unless the court determines that the parent, legal custodian, or caregiver was fleeing from a situation involving domestic violence
Neglect

‘Neglect’ occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment; or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. Neglect of a child includes acts or omissions.

‘Medical neglect’ means the failure to provide or allow needed care as recommended by a health-care practitioner for a physical injury, illness, medical condition, or impairment; or the failure to seek timely and appropriate medical care for a serious health problem that a reasonable person would have recognized as requiring professional medical attention. Medical neglect does not occur if the parent or legal guardian of the child has made reasonable attempts to obtain necessary health-care services or the immediate health condition giving rise to the allegation of neglect is a known and expected complication of the child’s diagnosis or treatment, and:

  • The recommended care offers limited net benefit to the child, and the morbidity or other side effects of the treatment may be considered to be greater than the anticipated benefit.
  • The parent or legal guardian received conflicting medical recommendations for treatment from multiple practitioners and did not follow all recommendations.
Sexual Abuse/Exploitation

‘Sexual abuse of a child’ means one or more of the following acts:

  • Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen
  • Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person
  • Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, not including any act intended for a valid medical purpose
  • The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, not including:
    • An act that may reasonably be construed to be a normal caregiver responsibility or any interaction with or affection for a child
    • An act intended for a valid medical purpose
  • The intentional masturbation of the perpetrator’s genitals in the presence of a child
  • The intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose
  • The sexual exploitation of a child, including:
    • A child offering to engage in or engaging in prostitution
    • Allowing, encouraging, or forcing a child to solicit for or engage in prostitution, engage in a sexual performance, or participate in the trade of human trafficking as provided in § 787.06(3)(g)

‘Harm’ to a child can occur when any person:

  • Commits or allows to be committed sexual battery or lewd acts against the child
  • Allows, encourages, or forces the sexual exploitation of a child, including engaging in prostitution or a sexual performance
  • Exploits a child or allows a child to be exploited
Emotional Abuse

‘Mental injury’ means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.

Abandonment

Citation: Ann. Stat. § 39.01
‘Abandoned’ or ‘abandonment’ occurs when the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child.

For purposes of this subsection, ‘establish or maintain a substantial and positive relationship’ includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child. A man’s acknowledgement of paternity of the child does not limit the period of time considered in determining whether the child was abandoned.

The term does not include a surrendered newborn infant as described in § 383.50, a ‘child in need of services’ or a ‘family in need of services’ as defined in chapter 984. The incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.

Standards for Reporting

Citation: Ann. Stat. § 39.201
A report is required when any person knows, or has reasonable cause to suspect that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.

Persons Responsible for the Child

Responsible persons include the child’s parent or legal custodian or, in the absence of the parent or legal custodian, the child’s caregiver. The term ‘caregiver’ includes the parent, legal custodian, permanent guardian, adult household member, or other person responsible for a child’s welfare.

‘Other person responsible for a child’s welfare’ includes:

  • The child’s legal guardian or foster parent
  • An employee of a private school, public or private child daycare center, residential home, institution, facility, or agency
  • A law enforcement officer employed in any facility, service, or program for children that is operated or contracted by the Department of Juvenile Justice
  • Any other person legally responsible for the child’s welfare in a residential setting
  • An adult sitter or relative entrusted with a child’s care
Exceptions

Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

It shall not be considered neglect if failure to provide for the child is caused primarily by financial inability, unless actual services for relief have been offered to and rejected by the parent.

A parent legitimately practicing religious beliefs in accordance with a recognized church or religious organization who does not provide specific medical treatment for a child may not, for that reason alone, be considered a negligent parent. This exception does not:

  • Eliminate the requirement that such a case be reported to the Department of Children and Family Services
  • Prevent the department from investigating such a case
  • Preclude a court from ordering, when the health of the child requires it, the provision of medical services by a physician or treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well-recognized church or religious organization

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

‘Family or household member’ means:

  • Spouses or former spouses
  • Persons related by blood or marriage
  • Persons who are presently residing together as if a family or who have resided together in the past as if a family
  • Persons who are parents of a child in common regardless of whether they have been married

With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to central abuse hotline of the Department of Children and Family Services.

Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare also shall report such knowledge or suspicion to the department on the central abuse hotline.

In regulation: Professionally mandated reporters are required to provide their names to the abuse hotline when making a report of alleged child maltreatment. A report shall be accepted if it meets statutory criteria for acceptance even if the reporters wish to remain anonymous. Nonprofessionally mandated reporters are not required to provide their names for the acceptance of a report.

Content of Reports

When a report is being accepted, the hotline counselor shall ask all reporters to provide the following information:

  • Information regarding subjects of the report, including name, race, sex, date of birth, Social Security number, ethnicity, school, employment, address, phone number, and/or other acceptable means to locate the victim if the address is not known
  • The relationship between the victim and the alleged perpetrator
  • Names and contact information for any person who can provide assistance to the child or additional information about the family’s circumstances
  • The type of maltreatment alleged and the nature and extent of harm suffered by the victim, including when the incident occurred or whether it is a chronic, ongoing situation
  • Any known history of abuse, neglect, or abandonment of persons named in the report
  • The risk of continued maltreatment and whether the alleged perpetrator continues to have access to the victim
  • The current condition of the child
  • Other children in the environment
  • The name and occupation of the reporter, relationship between the child and the reporter, contact information for the reporter, and any other information the reporter believes will be of assistance
Reporting Suspicious Deaths

Any person required to report or investigate cases of suspected child abuse, abandonment, or neglect who has reasonable cause to suspect that a child died as a result of child abuse, abandonment, or neglect shall report his or her suspicion to the appropriate medical examiner. The medical examiner shall accept the report for investigation and shall report his or her findings, in writing, to the local law enforcement agency, the appropriate State attorney, and the department. Autopsy reports maintained by the medical examiner are not subject to the confidentiality requirements provided for in § 39.202.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The department shall operate and maintain a central abuse hotline to receive all reports of suspected child maltreatment in writing, via fax, via web-based reports, via web-based chat, or through a single statewide toll-free telephone number, which any person may use to report known or suspected child abuse, abandonment, or neglect at any hour of the day or night, any day of the week.

Initial Screening Decisions

Personnel at the department’s central abuse hotline shall determine if the report received meets the statutory definition of child abuse, abandonment, or neglect. Any report meeting one of these definitions shall be accepted for a protective investigation.

If the report involves child abuse by someone other than a caregiver, the report shall be transferred immediately to the appropriate county sheriff’s office. If the report involves the impregnation of a child under age 16 by a person age 21 or older, the report shall be made immediately to an appropriate law enforcement agency.

Upon receiving a report, the hotline shall determine if the report requires an immediate onsite protective investigation. For reports requiring an immediate onsite protective investigation, the hotline shall notify immediately the department to ensure that an onsite investigation is promptly initiated. For reports not requiring an immediate investigation, the hotline shall notify the department in sufficient time to allow for an investigation.

The department shall forward immediately allegations of criminal conduct to the appropriate law enforcement agency of the municipality or county in which the alleged conduct occurred.

In regulation: Hotline staff shall determine if the allegation in the report meets the statutory definition of child abuse, neglect, abandonment, or harm. Any allegation that meets one of these definitions shall be accepted for protective investigation. The alleged child victim must be younger than age 18 and be a resident of or located in Florida at the time of the allegation. A report shall not be accepted on an unborn or stillborn child.

The alleged perpetrator must be a caregiver, which is defined as a parent, legal custodian, an adult household member, or other person responsible for a child’s welfare.

Agency Conducting the Assessment/Investigation

Protective investigations shall be performed by the department or its agent.

To the extent practical, all protective investigations involving a child shall be conducted or the work supervised by a single individual in order for there to be broad knowledge and understanding of the child’s history. When a new investigator is assigned to investigate a second and subsequent report involving a child, a multidisciplinary staffing shall be conducted that includes new and prior investigators, their supervisors, and appropriate private providers in order to ensure that, to the extent possible, there is coordination among all parties.

Upon receiving a written report of an allegation of criminal conduct from the department, the law enforcement agency shall review the information in the written report to determine whether a criminal investigation is warranted. If the law enforcement agency accepts the case for criminal investigation, it shall coordinate its investigative activities with the department, whenever feasible. If the law enforcement agency does not accept the case for criminal investigation, the agency shall notify the department in writing.

Assessment/Investigation Procedures

An assessment of safety and the perceived needs for the child and family shall be conducted in a manner that is sensitive to the social, economic, and cultural environment of the family.

For each report accepted for investigation, the department or the sheriff providing child protective investigative services shall perform the following child protective investigation activities to determine child safety:

  • Conduct a review of all relevant, available information specific to the child and family and alleged maltreatment; family child welfare history; and local, State, and Federal criminal records checks
  • Conduct face-to-face interviews with the child; any siblings; and the parents, legal custodians, or caregivers
  • Assess the child’s residence, including:
    • The composition of the family and household
    • The name, address, date of birth, Social Security number, sex, and race of each child named in the report
    • Any siblings or other children in the same household or in the care of the same adults
    • The parents, legal custodians, caregivers, or any other adults in the same household
  • Determine whether there is any indication that any child in the household has been abused, abandoned, or neglected; the nature and extent of present or prior injuries, abuse, or neglect, and any evidence thereof; and a determination as to the person or persons apparently responsible for the abuse, abandonment, or neglect, including the name, address, date of birth, Social Security number, sex, and race of each such person
  • Complete an assessment of immediate child safety for each child based on available records, interviews, and observations with all household members and appropriate collateral contacts, including other professionals
  • Document the present and impending dangers to each child based on the identification of inadequate protective capacity through utilization of a standardized safety assessment instrument
Timeframes for Completing Investigations

If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable for purposes of conducting a child protective investigation, or that the facts otherwise so warrant, the department shall commence an investigation immediately, regardless of the time of day or night. In all other child abuse, abandonment, or neglect cases, a child protective investigation shall be commenced within 24 hours after receipt of the report.

The department shall complete its protective investigation within 60 days after receiving the initial report unless:

  • There also is an active, concurrent criminal investigation that is continuing beyond the 60-day period and the closure of the protective investigation may compromise successful criminal prosecution of the child abuse or neglect case in which case, the closure date shall coincide with the closure date of the criminal investigation and any resulting legal action.
  • In child death cases, the final report of the medical examiner is necessary for the department to close its investigation and the report has not been received within the 60-day period, in which case the report closure date shall be extended to accommodate the report.
  • A child who is necessary to an investigation has been declared missing by the department, a law enforcement agency, or a court, in which case the 60-day period shall be extended until the child has been located or until sufficient information exists to close the investigation despite the unknown location of the child.
Classification of Reports

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

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Harm’ to a child’s health or welfare can occur when any person:

  • Purposely gives a child poison, alcohol, drugs, or other substances that substantially affect the child’s behavior, motor coordination, judgment, or that result in sickness or internal injury
  • Exposes a child to a controlled substance or alcohol

Exposure to a controlled substance or alcohol is established by:

  • A test, administered at birth, that indicated that the child’s blood, urine, or meconium contained any amount of alcohol or a controlled substance or metabolites of such substances, the presence of which was not the result of medical treatment administered to the mother or the newborn infant
  • Evidence of extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage

For the purposes of this paragraph, the terms ‘drugs’ and ‘controlled substances’ mean prescription drugs not prescribed for the child or the parent or not administered as prescribed, and controlled substances as outlined in Schedule I or Schedule II of § 893.03.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

A guardian ad litem (GAL) shall be appointed by the court at the earliest possible time to represent the child in any child abuse, abandonment, or neglect judicial proceeding, whether civil or criminal.

A GAL can be any of the following:

  • A certified GAL program member
  • A duly certified volunteer
  • A staff attorney, contract attorney, or certified pro bono attorney working on behalf of a GAL program
  • A staff member of a program office
  • A court-appointed attorney
  • A responsible adult who is appointed by the court to represent the best interests of a child involved in a proceeding

The legislature establishes the following goals for children in shelter or foster care: to have a GAL appointed to represent, within reason, their best interests and, where appropriate, an attorney ad litem appointed to represent their legal interests.

In court rules: At any stage of the proceedings, any party may request or the court may consider whether an attorney ad litem is necessary to represent any child alleged or found to be dependent, if one has not already been appointed.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The Guardian Ad Litem Program shall conduct a security background investigation before certifying a volunteer to serve. A security background investigation must include, but need not be limited to:

  • Employment history checks
  • Checks of references
  • Local criminal records checks through local law enforcement agencies
  • Statewide criminal records checks through the Department of Law Enforcement

A security background investigation conducted under this section must ensure that a person is not certified as a GAL if the person has an arrest awaiting final disposition for, been convicted of (regardless of adjudication), entered a plea of nolo contendere or guilty to, or been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under § 435.04. All applicants certified on or after July 1, 2010, must undergo a level 2 background screening pursuant to chapter 435 before being certified to serve as a GAL.

In analyzing and evaluating the information obtained in the security background investigation, the program must give particular emphasis to activities involving children, including, but not limited to, child-related criminal offenses or child abuse.

This section does not apply to a GAL who was certified before October 1, 1995, an attorney who is a member in good standing of the Florida Bar, or a licensed professional who has undergone a comparable security background investigation as a condition of licensure within 5 years of applying for certification as a GAL.

A training program shall be developed by the Statewide Guardian Ad Litem Office.

Attorneys ad litem appointed pursuant to the Keeping Children Safe Act, specifically pertaining to sexual abuse, shall have special training in the dynamics of child sexual abuse.

Specific Duties

The GAL shall be allowed to inspect and copy any records related to the best interests of the child who is the subject of the appointment including, but not limited to, confidential records. These records include, but are not limited to, medical, mental health, substance abuse, child care, education, law enforcement, court, social services, and financial records.

The GAL shall review all disposition recommendations and changes in placements, and he or she must be present at all critical stages of the dependency proceeding or submit a written report of recommendations to the court. Written reports must be filed with the court and served on all parties whose whereabouts are known at least 72 hours prior to the hearing.

How the Representative Is Compensated

In cases in which the parents are financially able, the parent or parents of the child shall reimburse the court, in part or in whole, for the cost of provision of GAL services. Reimbursement to the individual providing GAL services shall not be contingent upon successful collection by the court from the parent or parents.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

The Department of Children and Family Services shall prepare a draft of the case plan for each child receiving services under this chapter. A parent of a child may not be threatened or coerced with the loss of custody or parental rights for failing to admit in the case plan of abusing, neglecting, or abandoning a child. Participating in the development of a case plan is not an admission to any allegation of abuse, abandonment, or neglect, and it is not a consent to a finding of dependency or termination of parental rights.

A case plan must be prepared, but need not be submitted to the court, for a child who will be in care no longer than 30 days unless that child is placed in out-of-home care a second time within a 12-month period.

In each case in which a child has been placed in out-of-home care, a case plan must be prepared within 60 days after the department removes the child from the home and shall be submitted to the court before the disposition hearing for the court to review and approve.

The case plan must be filed with the court and copies provided to all parties, including the child, if appropriate, not less than 3 business days before the disposition hearing.

Who May Participate in the Case Planning Process

The case plan must be developed in a face-to-face conference with the parent of the child, any court-appointed guardian ad litem, and, if appropriate, the child, and the temporary custodian of the child.

The parent may receive assistance from any person or social service agency in preparing the case plan. The social service agency, the department, and the court, when applicable, shall inform the parent of the right to receive such assistance, including the right to assistance of counsel.

If a parent is unwilling or unable to participate in developing a case plan, the department shall document that unwillingness or inability to participate. The unwillingness or inability of the parent to participate in developing a case plan does not preclude the filing of a petition for dependency or for termination of parental rights.

The parent, if available, must be provided a copy of the case plan and be advised that he or she may, at any time before the filing of a petition for termination of parental rights, enter into a case plan and that he or she may request judicial review of any provision of the case plan with which he or she disagrees at any court hearing set for the child.

Contents of a Case Plan

The case plan must be written simply and clearly in English and, if English is not the principal language of the child’s parent, to the extent possible in the parent’s principal language. Each case plan must contain:

  • A description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department
  • The permanency goal
  • If concurrent planning is being used, a description of the permanency goal of reunification with the parent or legal custodian in addition to a description of an alternate permanency goal, as described in § 39.01, with the following conditions:
    • If a child has not been removed from a parent, but is found to be dependent, even if adjudication of dependency is withheld, the court may leave the child in the current placement with maintaining and strengthening the placement as a permanency option.
    • If a child has been removed from a parent and is placed with a parent from whom the child was not removed, the court may leave the child in the placement with the parent from whom the child was not removed with maintaining and strengthening the placement as a permanency option.
    • If a child has been removed from a parent and is subsequently reunified with that parent, the court may leave the child with that parent with maintaining and strengthening the placement as a permanency option.
  • The date the compliance period expires
  • A written notice to the parent that failure of the parent to substantially comply with the case plan may result in the termination of parental rights, and that a material breach of the case plan may result in the filing of a petition for termination of parental rights sooner than the compliance period set forth in the case plan

The case plan must be signed by all parties, except that the signature of a child may be waived if the child is not of an age or capacity to participate in the case planning process. Signing the case plan constitutes an acknowledgement that the case plan has been developed by the parties and that they are in agreement as to the terms and conditions contained in the case plan. The refusal of a parent to sign the case plan does not prevent the court from accepting the case plan if the case plan is otherwise acceptable to the court.

The case plan must describe:

  • The role of the foster parents or legal custodians when developing the services that are to be provided to the child, foster parents, or legal custodians
  • The responsibility of the case manager to forward a relative’s request to receive notification of all proceedings and hearings
  • The minimum number of face-to-face meetings to be held each month between the parents and the department’s family services counselors to review the progress of the plan, to eliminate barriers to progress, and to resolve conflicts or disagreements
  • The parent’s responsibility for financial support of the child, including, but not limited to, health insurance and child support

When the permanency goal for a child is adoption, the case plan must include documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child.

Concurrent Planning for Permanency for Children

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Current Through November 2012

The case plan must be written simply and clearly in English and, if English is not the principal language of the child’s parent, to the extent possible in the parent’s principal language. Each case plan must contain:

  • A description of the identified problem being addressed, including the parent’s behavior or acts resulting in risk to the child and the reason for the intervention by the department
  • The permanency goal
  • If concurrent planning is being used, a description of the permanency goal of reunification with the parent or legal custodian in addition to a description of one of the remaining permanency goals described in § 39.01

‘Concurrent planning’ means establishing a permanency goal in a case plan that uses reasonable efforts to reunify the child with the parent, while at the same time establishing another goal that must be one of the following options:

  • Adoption when a petition for termination of parental rights has been filed or will be filed
  • Permanent guardianship of a dependent child under § 39.6221
  • Permanent placement with a fit and willing relative under § 39.6231
  • Placement in another planned permanent living arrangement under § 39.6241

The permanency goal also is the case plan goal. If concurrent case planning is being used, reunification may be pursued at the same time that another permanency goal is pursued.

Within 6 months after the date that the child was placed in shelter care, the court shall conduct a judicial review hearing to review the child’s permanency goal as identified in the case plan. At the hearing, the court shall make findings regarding the likelihood of the child’s reunification with the parent or legal custodian within 12 months after the removal of the child from the home. If the court makes a written finding that it is not likely that the child will be reunified with the parent or legal custodian within 12 months after the child was removed from the home, the Department of Children and Family Services must file with the court and serve on all parties a motion to amend the case plan under § 39.6013 and declare that it will use concurrent planning for the case plan. The department must file the motion within 10 business days after receiving the written finding of the court. The department must attach the proposed amended case plan to the motion. If concurrent planning is already being used, the case plan must document the efforts the department is taking to complete the concurrent goal.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

Hearings shall be held to review the status of the child:

  • At least every 6 months until the child reaches permanency status
  • No later than 90 days after the date of the disposition hearing or after the date of the hearing at which the court approves the case plan, whichever comes first
  • No later than 6 months after the date the child was removed from the home
  • No later than 6 months after the date that the child was placed in shelter care to review the child’s permanency goal as identified in the case plan
  • At minimum, 6 months following the reunification of the child with his or her parent(s) to determine whether supervision by the Department of Children and Family Services and the court’s jurisdiction shall continue or be terminated
  • If the child is placed in the custody of the department or a licensed child-placing agency for the purpose of adoptive placement, every 6 months until the adoption is finalized
  • Within 90 days after a child’s 17th birthday and as necessary during the year prior to the child’s 18th birthday

A permanency hearing must be held:

  • No later than 12 months after the date the child was removed from the home
  • No later than 6 months after the child was placed in shelter care
  • No later than 30 days after a court determines that reasonable efforts to return a child to either parent are not required
  • At least every 12 months for any child who continues to receive supervision from the department or awaits adoption
Persons Entitled to Attend Hearings

Notice of a judicial review hearing or a citizen review panel hearing must be served upon all of the following persons, if available to be served, regardless of whether the person was present at the previous hearing at which the date, time, and location of the hearing was announced:

  • The social service agency charged with the supervision of care, custody, or guardianship of the child
  • The foster parent or legal custodian in whose home the child resides
  • The parents
  • The guardian ad litem for the child
  • The attorney for the child
  • The child if he or she is age 13 or older
  • Any preadoptive parent
  • Such other persons as the court may direct

The attorney for the department shall notify a relative who submits a request for notification of all proceedings and hearings. The notice shall include the date, time, and location of the next judicial review hearing.

Determinations Made at Hearings

The court shall seek to determine:

  • If the parent was advised of the right to receive assistance from any person or agency in the preparation of the case plan and the right to have counsel present
  • If a guardian ad litem needs to be appointed for the child
  • Who holds the rights to make educational decisions for the child
  • The compliance or lack of compliance of all parties with the case plan, including the parents’ compliance with financial obligations and child support orders
  • The compliance or lack of compliance with a plan for contact between the parent and the child, including the frequency, duration, and results of the parent-child visitation and the reason for any noncompliance
  • The frequency, kind, and duration of contacts among siblings who have been separated during placement
  • Whether the child is receiving safe and proper care, including, but not limited to, the appropriateness of the child’s current placement in a setting that is as family-like and as close to the parent’s home as possible, and the appropriateness of the child’s current educational setting
  • A projected likely date for the child’s return home or other permanent placement
  • When applicable, the basis for the unwillingness or inability of the parent to become a party to a case plan
  • For a child who is at least age 13 but not yet age 18, the adequacy of the child’s preparation for adulthood and Independent Living
  • If amendments to the case plan are required

At the permanency hearing, the court shall determine:

  • Whether the current permanency goal for the child is appropriate or should be changed
  • When the child will achieve one of the permanency goals
  • Whether the department has made reasonable efforts to finalize the permanency plan currently in effect

The best interests of the child is the primary consideration in determining the permanency goal for the child.

Permanency Options

The permanency goals available under this chapter, listed in order of preference, are:

  • Reunification
  • Adoption, if a petition for termination of parental rights has been or will be filed
  • Permanent guardianship of a dependent child under § 39.6221
  • Permanent placement with a fit and willing relative under § 39.6231
  • Placement in another planned permanent living arrangement under § 39.6241

If a child will not be reunited with a parent, adoption is the primary permanency option. If the child is placed with a relative or with a relative of the child’s half-brother or half-sister as a permanency option, the court may recognize the permanency of this placement without requiring the relative to adopt the child.

If the court approves a permanency goal of permanent guardianship of a dependent child, placement with a fit and willing relative, or another planned permanent living arrangement, the court shall make findings as to why this permanent placement is established without adoption of the child to follow. If the court approves a permanency goal of another planned permanent living arrangement, the court shall document the compelling reasons for choosing this goal.

Determining the Best Interests of the Child

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Current Through March 2016

For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to:

  • Any suitable permanent custody arrangement with a relative of the child
  • The ability and disposition of the parent(s) to provide the child with food, clothing, medical care, other remedial care, and other material needs of the child
  • The capacity of the parent(s) to care for the child to the extent that the child’s safety; well-being; and physical, mental, and emotional health will not be endangered upon the child’s return home
  • The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child
  • The love, affection, and other emotional ties existing between the child and the child’s parent(s), siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties
  • The likelihood of an older child remaining in long-term foster care upon termination of parental rights due to emotional or behavioral problems or any special needs of the child
  • The child’s ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties
  • The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
  • The depth of the relationship existing between the child and the present custodian
  • The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference
  • The recommendations for the child provided by the child’s guardian ad litem or legal representative

The availability of a nonadoptive relative placement may not receive greater consideration than any other factor weighing on the manifest best interests of 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

Grounds for the termination of parental rights may be established under any of the following circumstances:

  • The parent has abandoned the child.
  • The parent’s conduct toward the child or other children threatens the life; safety; well-being; or physical, mental, or emotional health of the child, irrespective of the provision of services.
  • The parent is incarcerated and one of the following applies:
    • The time for which the parent is expected to be incarcerated will constitute a substantial portion of the child’s minority.
    • The incarcerated parent has been determined by the court to be a violent, career criminal; a habitual, violent, felony offender; or a sexual predator.
    • The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child.
  • A child has been adjudicated dependent, a case plan has been filed with the court, and:
    • The child continues to be abused, neglected, or abandoned by the parents.
    • The parent has materially breached the case plan by making it unlikely that he or she will be able to substantially comply with the case plan before the time for compliance expires.
  • The parent has engaged in egregious conduct or knowingly failed to prevent egregious conduct that threatens the life; safety; or physical, mental, or emotional health of the child or the child’s sibling.
  • The parent has subjected the child to aggravated child abuse, sexual battery, sexual abuse, or chronic abuse.
  • The parent or parents have committed murder or voluntary manslaughter of another child, or a felony assault that results in serious bodily injury to the child or another child, or aided or abetted, attempted, conspired, or solicited to commit such a murder or voluntary manslaughter or felony assault.
  • The parental rights of the parent to a sibling have been terminated involuntarily.
  • The parent has a history of extensive, abusive, and chronic use of alcohol or a controlled substance that renders him or her incapable of caring for the child and has refused or failed to complete available treatment for such use during the 3-year period immediately preceding the filing of the petition for termination of parental rights.
  • A test administered at birth that indicated that the child’s blood, urine, or meconium contained any amount of alcohol or a controlled substance or metabolites of such substances, the presence of which was not the result of medical treatment administered to the mother or the newborn infant, and the biological mother of the child is the biological mother of at least one other child who was adjudicated dependent after a finding of harm to the child’s health or welfare due to exposure to a controlled substance or alcohol, after which the biological mother had the opportunity to participate in substance abuse treatment.
  • On three or more occasions the child or another child of the parent has been placed in out-of-home care, and the conditions that led to the child’s out-of-home placement were caused by the parent.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition may be filed when the parents have substantially failed to comply with a case plan for 12 months unless the failure to comply was due to:

  • A lack of financial resources of the parent
  • A failure of the Department of Children and Family Services to make reasonable efforts to reunify the parent and child
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 newborn infant may be relinquished. The term ‘newborn infant’ means a child that a licensed physician reasonably believes to be approximately 7 days old or younger.

Who May Relinquish the Infant

The infant may be relinquished by his or her parent.

Who May Receive the Infant

The child may be left at a hospital, emergency medical services station, or fire station.

Responsibilities of the Safe Haven Provider

Each emergency medical services station or fire station staffed with full-time firefighters, emergency medical technicians, or paramedics shall accept any newborn infant left with a firefighter, emergency medical technician, or paramedic. They shall consider these actions as implied consent to and shall:

  • Provide emergency medical services to the newborn infant to the extent he or she is trained to provide those services
  • Arrange for the immediate transportation of the newborn infant to the nearest hospital having emergency services

Each hospital shall admit and provide all necessary emergency services and care to any newborn infant left with the hospital in accordance with this section. The hospital or any of its licensed health-care professionals shall consider these actions as implied consent for treatment, and a hospital accepting physical custody of a newborn infant has implied consent to perform all necessary emergency services and care.

Upon admitting a newborn infant, the hospital shall immediately contact a local licensed child-placing agency or alternatively contact the statewide central abuse hotline for the name of a licensed child-placing agency for purposes of transferring physical custody of the newborn infant. The hospital shall notify the licensed child-placing agency that a newborn infant has been left with the hospital and approximately when the licensed child-placing agency can take physical custody of the child. In cases where there is actual or suspected child abuse or neglect, the hospital or any of its licensed health-care professionals shall report the actual or suspected child abuse or neglect in accordance with statute in lieu of contacting a licensed child-placing agency.

Immunity for the Provider

A medical services provider, a fire department, or an employee or agent of a medical services provider or fire department is immune from criminal or civil liability for acting in good faith pursuant to this section. Nothing in this subsection limits liability for negligence.

The hospital or any of its licensed health-care professionals is immune from criminal or civil liability for acting in good faith in accordance with this section. Nothing in this subsection limits liability for negligence.

Protection for Relinquishing Parent

A newborn infant left at a hospital, emergency medical services station, or fire station in accordance with this section shall not be deemed abandoned and is not subject to reporting and investigation requirements, unless there is actual or suspected child abuse or until the Department of Children and Family Services takes physical custody of the child.

A criminal investigation shall not be initiated solely because a newborn infant is left at a hospital under this section, unless there is actual or suspected child abuse or neglect.

Except where there is actual or suspected child abuse or neglect, any parent who leaves a newborn infant with a firefighter, emergency medical technician, or paramedic at a fire station or emergency medical services station, or brings a newborn infant to an emergency room of a hospital and expresses an intent to leave the newborn infant and not return, has the absolute right to remain anonymous and to leave at any time and may not be pursued or followed unless the parent seeks to reclaim the newborn infant.

Effect on Parental Rights

There is a presumption that the parent who leaves the newborn infant in accordance with this section intended to leave the newborn infant and consented to termination of parental rights.

A parent of a newborn infant left at a hospital, emergency medical services station, or fire station may claim his or her newborn infant up until the time the court enters a judgment terminating his or her parental rights. A claim to the newborn infant must be made to the entity that has physical or legal custody of the newborn infant or to the circuit court before which proceedings involving the newborn infant are pending.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘permanent guardian’ means the relative or other adult in a permanent guardianship of a dependent child under § 39.6221.

‘Permanent guardianship of a dependent child’ means a legal relationship that a court creates under § 39.6221 between a child and a relative or other adult approved by the court that is intended to be permanent and self-sustaining through the transfer of parental rights with respect to the child relating to protection, education, care and control of the person, custody of the person, and decision-making on behalf of the child.

Purpose of Guardianship

It is the intent of the legislature in enacting this section to:

  • Provide for the establishment of procedures and protocols that serve to advance the continued safety of children by acknowledging the valued resource uniquely available through grandparents, relatives of children, and specified nonrelatives of children
  • Recognize family relationships in which a grandparent or other relative is the head of a household that includes a child otherwise at risk of foster care placement
  • Enhance family preservation and stability by recognizing that most children in such placements with grandparents and other relatives do not need intensive supervision of the placement by the courts or by the Department of Children and Families
  • Recognize that permanency in the best interests of the child can be achieved through a variety of permanency options, including permanent guardianship under § 39.6221 if the guardian is a relative, that will achieve permanency and stability for many children who are otherwise at risk of foster care placement because of abuse, abandonment, or neglect, but who may successfully be able to be placed by the dependency court in the care of such relatives
  • Reserve the limited casework and supervisory resources of the courts and the department for those cases in which children do not have the option for safe, stable care within the family
A Guardian’s Rights and Responsibilities

The court shall give the permanent guardian a separate order establishing the authority of the permanent guardian to care for the child and shall provide any other information the court deems proper to persons who are not parties to the proceeding as necessary, notwithstanding the confidentiality provisions of § 39.202.

A permanent guardianship of a dependent child established under this chapter is not a plenary guardianship and is not subject to the requirements of chapter 744.

Placement of a child in a permanent guardianship does not terminate the parent-child relationship, including:

  • The right of the child to inherit from his or her parents
  • The parents’ right to consent to the child’s adoption
  • The parents’ responsibility to provide financial, medical, and other support for the child as ordered by the court
Qualifying the Guardian

If the child has been removed from the home and will be remaining with a relative, parent, or other adult approved by the court, a home study report must be completed. The department shall conduct the study, which must include, at a minimum:

  • An interview with the proposed legal custodians to assess their ongoing commitment and ability to care for the child
  • Records checks through the State Automated Child Welfare Information System (SACWIS), and local and statewide criminal and juvenile records checks through the Department of Law Enforcement, on all household members age 12 or older
  • Fingerprint-based checks of any household members who are age 18 or older that are forwarded to the Federal Bureau of Investigation for State and national criminal history information
  • An assessment of the physical environment of the home
  • A determination of the financial security of the proposed legal custodians
  • A determination of suitable child care arrangements if the proposed legal custodians are employed outside of the home
  • Documentation of counseling and information provided to the proposed legal custodians regarding the dependency process and possible outcomes
  • Documentation that information regarding support services available in the community has been provided to the proposed legal custodians
Procedures for Establishing Guardianship

If a court determines that reunification or adoption is not in the best interest of the child, the court may place the child in a permanent guardianship with a relative or other adult approved by the court if all of the following conditions are met:

  • The child has been in the placement for no less than the preceding 6 months.
  • The permanent guardian is suitable and able to provide a safe and permanent home for the child.
  • The court determines that the child and the relative or other adult are not likely to need supervision or services of the department to ensure the stability of the permanent guardianship.
  • The permanent guardian has made a commitment to provide for the child until the child reaches the age of majority and to prepare the child for adulthood and independence.
  • The permanent guardian agrees to give notice of any change in his or her residential address or the residence of the child by filing a written document in the dependency file of the child with the clerk of the court.
Contents of a Guardianship Order

In its written order establishing a permanent guardianship, the court shall:

  • List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making separate findings of fact
  • State the reasons why a permanent guardianship is being established instead of adoption
  • Specify the frequency and nature of visitation or contact between the child and his or her parents
  • Specify the frequency and nature of visitation or contact between the child and his or her grandparents
  • Specify the frequency and nature of visitation or contact between the child and his or her siblings
  • Require that the permanent guardian not return the child to the physical care and custody of the person from whom the child was removed without the approval of the court
Modification/Revocation of Guardianship

The court shall retain jurisdiction over the case and the child shall remain in the custody of the permanent guardian unless the order creating the permanent guardianship is modified by the court. The court shall discontinue regular review hearings and relieve the department of the responsibility for supervising the placement of the child. Notwithstanding the retention of jurisdiction, the placement shall be considered permanency for the child.

Eligibility for Guardianship Subsidy

The Department of Children and Families shall establish and operate the Relative Caregiver Program. The program shall, within the limits of available funding, provide financial assistance to:

  • Relatives who are within the fifth degree by blood or marriage to the parent or stepparent of a child and who are caring full-time for that dependent child in the role of substitute parent as a result of a court’s determination of child abuse, neglect, or abandonment and the subsequent placement with the relative
  • Nonrelatives who are willing to assume custody and care of a dependent child in the role of substitute parent as a result of a court’s determination of child abuse, neglect, or abandonment and the subsequent placement with the nonrelative caregiver

The court must find that the proposed placement is in the best interests of the child. The placement may be court-ordered temporary legal custody to the relative or nonrelative under protective supervision of the department or court-ordered placement in the home of a relative or nonrelative as a permanency option under § 39.6221 if the placement was made before July 1, 2006. The program shall offer financial assistance to caregivers who would be unable to serve in that capacity without the caregiver payment because of financial burden, thus exposing the child to the trauma of placement in a shelter or in foster care.

Caregivers who receive assistance under the program must be capable, as determined by a home study, of providing a physically safe environment and a stable, supportive home for the children under their care. They must assure that the children’s well-being is met, including, but not limited to, the provision of immunizations, education, and mental health services as needed.

Relatives or nonrelatives who qualify for and participate in the Relative Caregiver Program are not required to meet foster care licensing requirements under § 409.175.

Links to Agency Policies

Florida Department of Children and Families, Operating Procedures # 175-79, Relative Caregiver Programexternal link (PDF – 140 KB)

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

If the Department of Children and Family Services has taken a child into custody due to a finding that the child has been abused, neglected, or abandoned, the department shall review the facts supporting the removal with an attorney representing the department. The purpose of the review is to determine whether there is probable cause for the filing of a shelter petition.

If the facts are sufficient and the child has not been returned to the custody of the parent or legal custodian, the department shall file the petition and schedule a hearing to be held within 24 hours after the removal of the child. While awaiting the shelter hearing, the department may release the child to a parent, legal custodian, responsible adult relative, or the adoptive parent of the child’s sibling who shall be given priority consideration over a licensed placement, or a responsible adult approved by the department if this is in the best interests of the child.

When a child is taken into custody, the department shall request that the child’s parent, caregiver, or legal custodian disclose the names, relationships, and addresses of all parents and prospective parents and all next of kin of the child, so far as are known.

The Relative Caregiver Program provides financial assistance to relatives who are within the fifth degree, by blood or marriage, to the parent or stepparent of a child and who are caring for the child fulltime as a result of a court’s determination of child abuse, neglect, or abandonment.

If a court finds that reunification or adoption are not in the best interests of a child, the court may place the child with a fit and willing relative.

Requirements for Placement with Relatives

Placement of a child that is not in a licensed shelter must be preceded by a criminal history records check. In addition, the department may authorize placement of a housekeeper/homemaker in the home of a child alleged to be dependent until the parent or legal custodian assumes care of the child.

The court may place the child with a fit and willing relative as a permanency option if:

  • The child has been in the placement for at least the preceding 6 months.
  • The relative has made a commitment to provide for the child until the child reaches the age of majority and to prepare the child for adulthood and independence.
  • The relative is suitable and able to provide a safe and permanent home for the child.
  • The relative agrees to give notice of any change in his or her residence or the residence of the child by filing a written document with the clerk of court.

Relative caregivers must be capable, as determined by a home study, of providing a physically safe environment and a stable, supportive home for the children under their care. They must assure that the children’s well-being is met, including, but not limited to, the provision of immunizations, education, and mental health services as needed.

Relatives who qualify for and participate in the Relative Caregiver Program are not required to meet foster care licensing requirements.

In its written order placing the child with a fit and willing relative, the court shall:

  • List the circumstances or reasons why reunification is not possible
  • State the reasons why permanent placement with a fit and willing relative is being established instead of adoption
  • Specify the frequency and nature of visits or contact between the child and his or her parents, grandparents, and siblings
  • Require that the relative not return the child to the physical care and custody of the person from whom the child was removed without the approval of the court
Requirements for Placement of Siblings

The child-placing agency shall select the most appropriate service for the child, consistent with the child’s and family’s need. When selecting care, the agency shall take into consideration a child’s racial, cultural, ethnic, religious heritage, and sibling relationships and shall preserve them to the extent possible without jeopardizing the child’s right to care or to a permanent family.

The caseworker has specific tasks in regard to a child’s case plan. The caseworker shall ensure that a schedule for visits between a child in an out-of-home placement and his or her separated siblings, parents, relatives, and other people of significance in the child’s life is addressed in the case plan.

Relatives Who May Adopt

The child’s grandparent has the right to petition to adopt the child.

Requirements for Adoption by Relatives

The child must have lived with the grandparent for at least 6 months within the 24-month period immediately preceding the filing of a petition for termination of parental rights.

Unless ordered by the court, no report or recommendation is required when the child to be adopted is a relative of one of the adoptive parents.

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 term ‘reasonable efforts’ means the exercise of reasonable diligence and care by the Department of Children and Families to provide the services ordered by the court or delineated in the case plan.

When Reasonable Efforts Are Required

If the court finds that the prevention or reunification efforts by the department will allow the child to remain safely at home or be returned to the home safely, the court shall allow the child to remain in or return to the home after making a specific finding of fact that the reasons for removal have been remedied to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered.

If the court places the child in an out-of-home placement, the disposition order must include a written determination that the child cannot remain at home safely with reunification or family preservation services and that removal of the child is necessary to protect the child. If the child is removed before the disposition hearing, the order must also include a written determination as to whether, after removal, the department made a reasonable effort to reunify the parent and child. The department has the burden of demonstrating that it made reasonable efforts.

The court shall determine whether reasonable efforts have been made by reviewing:

  • Whether or not prevention or reunification services were indicated
  • A written description of what appropriate and available prevention and reunification efforts were made
  • Why further efforts could or could not have prevented or shortened the separation of the parent and child

A reasonable effort has been made if the appraisal of the home situation indicates the severity of conditions is such that reunification efforts were inappropriate.

When Reasonable Efforts Are NOT Required

Reasonable efforts are not required when:

  • The parent has breached the case plan.
  • The parent has abandoned the child.
  • The parent is incarcerated, the term of incarceration constitutes a significant portion of the child’s minority, and continuing the parental relationship with that parent would be harmful to the child.
  • The parent’s conduct threatens the child’s life; safety; well-being; or physical, mental, or emotional health.
  • The parent engaged in egregious conduct or had the opportunity to prevent and knowingly failed to prevent egregious conduct that threatened the child’s life; safety; or physical, mental, or emotional health.
  • The parent has subjected the child or another child to aggravated child abuse, sexual battery, sexual abuse, or chronic abuse.
  • The parent has committed the murder, manslaughter, aiding or abetting the murder, or conspiracy or solicitation to murder the other parent or another child, or a felony battery that resulted in serious bodily injury to the child or to another child.
  • The parental rights of the parent to a sibling of the child have been terminated involuntarily.
  • The parent has a history of extensive, abusive, and chronic use of alcohol or a controlled substance that makes him or her incapable of caring for the child and has refused or failed to complete available treatment.
  • A newborn child had a positive test that indicated the presence of alcohol or a controlled substance, the presence of which was not the result of medical treatment to the mother or the newborn, and the mother is the birth mother of at least one other child who was found dependent due to exposure to a controlled substance or alcohol.
  • On three or more occasions, the child or another child of the parent has been placed in out-of-home care, and the conditions that led to the child’s out-of-home placement were caused by the parent.
  • The child was conceived as a result of an act of sexual battery.

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

Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person, property, or both, of the parent’s minor child.

How to Establish a Standby Guardian

The preneed guardian is nominated by making a written declaration that names the guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. An alternate to the guardian may also be nominated to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.

The written declaration must reasonably identify the designated preneed guardian and must be signed by the parents in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the full name as it appears on the birth certificate or as ordered by a court, date of birth, and Social Security number, if any, for each minor child.

The parent making the declaration must file the declaration with the clerk of the court.

How Standby Authority is Activated

When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration. Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.

Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with § 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in § 744.345.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 744.3046
Both parents or the surviving parent must consent.

Authority Relationship of the Parent and the Standby

The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.

Withdrawing Guardianship

If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.

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

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

 

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

1st Circuit

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

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11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

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US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

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9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

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4th Circuit

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

5th Circuit

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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

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7th Circuit

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

8th Circuit

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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

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3rd Circuit

 

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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8th Circuit

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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