How to write a Motion To Dismiss for CWS / CPS Juvenile Court In Hawaii

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.

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.

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

Hawaii

 A GUIDE TO CHILD WELFARE SERVICES

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: The term ‘in the presence of a minor’ means in the actual physical presence of a child or knowing that a child is present and may hear or see the offense.

Consequences

The court shall consider the following aggravating factors in determining the particular sentence to be imposed:

  • The defendant has been convicted of committing or attempting to commit an offense involving abuse of a family or household member.
  • The defendant is or has been a family or household member of either a minor or the victim of the offense.
  • The offense contemporaneously occurred in the presence of a minor.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Child abuse or neglect’ means acts or omissions that have resulted in the physical health or welfare of the child who is under age 18 to be harmed or to be subject to a reasonably foreseeable, substantial risk of being harmed. The acts or omissions are indicated for the purposes of reports by circumstances that include, but are not limited to:

  • When the child exhibits evidence of any of the following injuries, and such injury is not justifiably explained, or when the history given concerning such condition or death is inconsistent with the degree or type of such condition or death, or circumstances indicate that such condition or death may not be the product of an accidental occurrence:
    • Substantial or multiple skin bruising or other internal bleeding
    • An injury to skin causing substantial bleeding
    • Malnutrition or failure to thrive
    • Burns or poisoning
    • Fracture of any bone
    • Subdural hematoma or soft tissue swelling
    • Extreme pain or mental distress
    • Gross degradation
    • Death
  • When the child is provided with dangerous, harmful, or detrimental drugs; provided that this paragraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner
  • When the child has been the victim of labor trafficking under chapter 707
Neglect

‘Child neglect’ occurs when a child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision.

Sexual Abuse/Exploitation

The term ‘child abuse or neglect’ includes instances when the child has been the victim of:

  • Sexual contact or conduct including, but not limited to, sexual assault
  • Molestation or sexual fondling
  • Incest
  • Prostitution
  • Obscene or pornographic photographing, filming, or depiction, or other similar forms of sexual exploitation
  • Other similar forms of sexual exploitation, including, but not limited to, acts that constitute an offense pursuant to § 712-1202(1)(b) [promoting prostitution of a person younger than age 18]
Emotional Abuse

The term ‘child abuse or neglect’ includes acts or omissions that have resulted in injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child’s ability to function.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Rev. Stat. § 350-1.1
A report is required when a mandatory reporter, in his or her professional or official capacity, has reason to believe that child abuse or neglect has occurred or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future.

Persons Responsible for the Child

A ‘responsible person’ is any person who, or legal entity that, is:

  • In any manner or degree related to the child
  • Residing with the child
  • Otherwise responsible for the child’s care
Exceptions

No exceptions are specified in statute.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means:

  • Physical harm, bodily injury, or assault; the threat of imminent physical harm, bodily injury, or assault; extreme psychological abuse; or malicious property damage between family or household members
  • Any act that would constitute an offense under § 709-906 (abuse of family or household members), or under part V (sexual offenses), or VI (child abuse) of chapter 707 committed against a minor family or household member by an adult family or household member

‘Extreme psychological abuse’ means an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer extreme emotional distress.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer.

Persons Included in the Definition

In civil law: ‘Family or household member’ means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship.

‘Dating relationship’ means a romantic, courtship, or engagement relationship, which is often, but not necessarily, characterized by actions of an intimate or sexual nature, but does not include a casual acquaintance or ordinary fraternization between persons in a business or social context.

In criminal law: ‘Family or household member’ means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons in a dating relationship as defined under § 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone participating in good faith in making a report pursuant to the reporting laws shall have immunity from any civil or criminal liability that might otherwise be incurred, imposed by, or result from making the report. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.

Any individual who assumes a duty or responsibility pursuant to statute shall have immunity from civil liability for acts or omissions performed within the scope of the individual’s duty or responsibility.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has reason to believe that child abuse or neglect has occurred shall immediately report the matter orally to the Department of Human Services or the police department. The initial oral report shall be followed as soon as possible by a report in writing to the department.

Content of Reports

All written reports shall contain, if known:

  • The name and address of the child and the child’s parents or other persons responsible for the child’s care
  • The child’s age
  • The nature and extent of the child’s injuries
  • Any other information that the reporter believes might be helpful or relevant to the investigation
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The department shall receive reports concerning child abuse or neglect.

The department shall inform the appropriate police department or office of the prosecuting attorney of the relevant information concerning a case of child abuse or neglect when the information is required for the investigation or prosecution of that case.

Initial Screening Decisions

Upon receipt of a report, the department immediately shall assess the validity of the report, the safety of the child, and the agency response to the report.

If the department determines the report involves high or severe harm or severe threatened harm, the report shall be accepted for further assessment. If the report involves a low or moderate level of harm or threatened harm, the family may be diverted to community resources for short-term counseling, outreach, and/or support services.

Agency Conducting the Assessment/Investigation

Upon receiving a report that a child is subject to imminent harm, has been harmed, or is subject to threatened harm, the department shall conduct an investigation as it deems to be appropriate.

Assessment/Investigation Procedures

In conducting the investigation, the department may:

  • Enlist the cooperation and assistance of appropriate State and Federal law enforcement authorities, who may conduct an investigation and, if an investigation is conducted, shall provide the department with all preliminary findings, including the results of a criminal history record check of an alleged perpetrator
  • Interview the child without the presence or prior approval of the child’s family and temporarily assume protective custody of the child for the purpose of conducting the interview

In regulation: The department shall assess each report accepted by the department in accordance with departmental procedures. The assessment, which will continue throughout the duration of the case, will determine whether or not the child has been harmed or is threatened with harm and the action that will be taken by the department.

The department shall determine and initiate any needed services necessary to complete the assessment, including but not limited to multidisciplinary team consultation, psychological, psychiatric, psychosexual, or other needed evaluations.

When additional facts are needed to thoroughly evaluate the family and child’s current situation, the department shall contact other persons or agencies that may possess knowledge of the family without consent.

A written medical assessment of the child’s physical condition shall be obtained when sexual abuse is suspected or there is a report of severe abuse, neglect, or medical neglect.

The department may obtain a criminal history record check on an alleged perpetrator.

Timeframes for Completing Investigations

For those reports accepted for assessment, a disposition shall be made in accordance with departmental procedures and documented in the department’s information system within 60 working days of the acceptance of the report as to whether the child has been harmed.

Classification of Reports

Records of reports shall be maintained by the department to assist in risk and safety assessments of a child who has been reported to be harmed or at risk of harm, provided that:

  • A report that is unsubstantiated shall be expunged within 90 working days.
  • A report that was investigated and found to be not confirmed shall be maintained by the department for use in future risk and safety assessments and for no other purpose.
  • A report that was investigated and found to be confirmed when the department finds after a review of the circumstances and facts of the case that there is evidence of substantial rehabilitation or an erroneous confirmation may be expunged.
  • A report that was investigated and found to be confirmed shall be maintained by the department for future risk and safety assessments.

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Child abuse or neglect’ means the acts or omissions of any person or legal entity in any manner or degree related to the child, residing with the child, or otherwise responsible for the child’s care, that have resulted in harm to the physical or psychological health or welfare of the child, who is under age 18, or have subjected the health or welfare of the child to any reasonably foreseeable, substantial risk of being harmed.

The acts or omissions are indicated for the purposes of reports by circumstances that include, but are not limited to, when the child is provided with dangerous, harmful, or detrimental drugs, provided that this paragraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner.

‘Harm’ means damage or injury to a child’s physical or psychological health or welfare, such as when the child is provided with dangerous, harmful, or detrimental drugs as defined in § 712-1240, except when a child’s family administers drugs to the child as directed or prescribed by a practitioner.

Except as provided below, any person convicted of manufacturing a controlled substance in violation of this chapter, who commits the offense knowing that a child under age 16 is present in the structure where the offense occurs, shall be sentenced to a term of 2 years imprisonment to run consecutively to the maximum indeterminate term of imprisonment for the conviction of any offense involving the manufacturing of a controlled substance.

Any person convicted of manufacturing a controlled substance in violation of this chapter, who commits the offense knowing that a child under age 18 is present in the structure where the offense occurs and causes the child to suffer serious or substantial bodily injury, shall be sentenced to a term of 5 years imprisonment to run consecutively to the maximum indeterminate term of imprisonment for the conviction of any offense involving the manufacturing of a controlled substance.

As used in this section, ‘structure’ means any house, apartment building, shop, warehouse, building, vessel, cargo container, motor vehicle, tent, recreational vehicle, trailer, or other enclosed space capable of holding a child and equipment for the manufacture of a controlled substance.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court shall appoint a guardian ad litem (GAL) to serve the child throughout the pendency of the child protective proceedings.

If the child’s opinions and requests differ from those being advocated by the GAL, the court shall evaluate and determine whether it is in the child’s best interests to appoint an attorney to serve as the child’s legal advocate concerning such issues and during the proceedings as the court deems to be in the best interests of the child.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

This issue is not addressed in the statutes reviewed.

Specific Duties

A GAL shall, unless otherwise ordered by the court:

  • Have access to the child
  • Have the authority to inspect and receive copies of any records, notes, and electronic recordings concerning the child that are relevant to the case
  • Be given notice of all hearings and proceedings involving the child, whether civil or criminal, including grand juries, and shall protect the best interests of the child
  • Make face-to-face contact with the child in the child’s family home or resource family home at least once every 3 months
  • Report to the court and all parties in writing at 6-month intervals, or as ordered by the court, regarding actions taken to ensure the child’s best interests, and recommend how the court should proceed in the best interests of that child
  • Inform the court of the child’s opinions and requests

The authority to inspect and receive copies of records shall exist even without the consent of the child or individuals and authorized agencies that have control of the child, except that nothing in this section shall override any attorney-client or attorney work-product privilege.

How the Representative Is Compensated

The fees and costs of a GAL appointed pursuant to this section may be paid by the court unless the party for whom counsel is appointed has an independent estate sufficient to pay such fees and costs. The court may order the appropriate parties to pay or reimburse the fees and costs of the GAL and any attorney appointed for the child.

Appointed counsel and the GAL shall receive reasonable compensation for necessary expenses, including travel, the amount of which shall be determined by the court, and reasonable fees. All of these expenses and fees shall be certified by the court and paid upon vouchers approved by the judiciary and warrants drawn by the comptroller.

The court shall determine the amount of reasonable compensation paid to appointed counsel and GAL, based on the following rates:

  • $90 an hour for in-court services provided by an attorney licensed to practice law in the State
  • $60 an hour for:
    • Out-of-court services provided by a licensed attorney
    • All services provided by a person who is not a licensed attorney, whether performed in court or out of court

The maximum allowable fee shall not exceed the following schedule:

  • Predisposition: $3,000
  • Postdisposition review hearing: $1,000

Payments in excess of any maximum provided for above may be made when the court in which the representation was rendered certifies, based upon representations of extraordinary circumstances attested to by the applicant, that the amount of the excess payment is necessary to provide fair compensation in light of those circumstances, and the payment is approved by the administrative judge of that court.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A service plan is a specific written plan prepared by an authorized agency and child’s family.

After each term and condition of the service plan has been thoroughly explained to and is understood by each member of the child’s family whom the appropriate authorized agency deems to be necessary to the success of the service plan, the service plan shall be agreed to and signed by each family member.

A copy of the service plan shall be provided to each family member who signed the service plan.

Who May Participate in the Case Planning Process

The plan will be prepared by:

  • An authorized agency
  • Members of the child’s family who have legal custody, guardianship, or permanent custody of the child at the time that the service plan is being formulated or revised
Contents of a Case Plan

The service plan shall provide:

  • The specific steps necessary to facilitate the return of the child to a safe family home if the proposed placement of the child is in foster care
  • Treatment and services that will be provided, actions completed, specific measurable and behavioral changes that must be achieved, and responsibilities assumed
  • Whether an ohana conference will be conducted for family finding and family group decision-making
  • The respective responsibilities of the child, the parents, legal guardian or custodian, the department, other family members, and treatment providers
  • A description and expected outcomes of the services required to achieve the permanency goal
  • The required frequency and types of contact between the social worker, child, and family
  • The timeframes for providing services, completing actions, and discharging responsibilities
  • Notice to the parents that their failure to substantially achieve the objectives of the service plan within the timeframes established may result in termination of their parental rights
  • Notice to the parents that if the child has been in foster care for a total of 15 out of the most recent 22 months from the child’s date of entry into foster care, the department is required to file a motion to set a termination of parental rights hearing, and the parents’ failure to provide a safe family home within 2 years from the date when the child was first placed under foster custody may result in the parents’ parental rights being terminated
  • Any other terms and conditions that the court or the authorized agency deem necessary to the success of the service plan

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court shall set a periodic review hearing to be conducted no later than 6 months after a child’s date of entry into foster care. Thereafter, the court shall conduct periodic review hearings every 6 months until the court’s jurisdiction is terminated unless the child is in the permanent custody of the department or an authorized agency.

If the child is in the permanent custody of the department or agency, the court shall conduct a permanency hearing every 6 months until the court’s jurisdiction is terminated.

A permanency hearing shall be conducted within 12 months of the child’s date of entry into foster care or within 30 days of a judicial determination that the child is an abandoned infant or that aggravated circumstances are present. A permanency hearing shall be conducted at least every 12 months thereafter for as long as the child remains in foster care under the placement responsibility of the department or an authorized agency, or every 6 months thereafter if the child remains in the permanent custody of the department or an authorized agency.

A permanency hearing may be held concurrently with a periodic review hearing.

Persons Entitled to Attend Hearings

Notice of hearings shall be served on the parties. No further notice is required for any party that defaulted or was given actual notice of a hearing while present in court. Notice of hearings shall be served no less than 48 hours before the scheduled hearing, subject to a shortening of time as ordered by the court.

The child’s current resource family shall be served written notice of hearings no less than 48 hours before a scheduled hearing. The resource family is entitled to participate in the proceedings to provide information to the court, either in person or in writing, concerning the current status of the child in their care.

For purposes of this section, ‘party’ or ‘parties’ shall include the current foster parents.

Determinations Made at Hearings

At the hearing, the court shall determine whether the child is receiving appropriate services and care and whether the case plan is being properly implemented. The court shall determine:

  • Whether the child is safe
  • The continued need for and appropriateness of the out-of-home placement
  • The extent to which each party has complied with the case plan
  • The family’s progress in making their home safe for the child and resolving the problems that caused the child harm or to be threatened with harm and, if applicable, the necessity for continued out-of-home placement of the child

At each permanency hearing, the court shall determine:

  • The projected timetable for reunification or, if the current placement is not expected to be permanent, placement in an adoptive home, with a legal guardian, or under the permanent custody of the department
  • Whether the department has made reasonable efforts, in accordance with the safety and well-being of the child, to:
    • Place siblings who have been removed from the family home in the same out-of-home placement
    • Provide for frequent visitation or other interactions with siblings who are not living in the same household
  • The appropriate permanency goal for the child, including whether a change in goal is necessary
  • Whether the department has made reasonable efforts to finalize the permanency goal
  • The date by which the permanency goal for the child is to be achieved
  • In the case of a child age 16 or older, the services needed to assist the child with the transition to independent living
Permanency Options

At each permanency hearing, the court shall order:

  • The child’s reunification with a parent or parents
  • The child’s continued placement in foster care when:
    • Reunification is expected to occur within a timeframe that is consistent with the developmental needs of the child.
    • The safety and health of the child can be adequately safeguarded.
  • A permanent plan with a goal of:
    • Placing the child for adoption with the department filing a motion for the termination of parental rights
    • Placing the child for legal guardianship if the department documents and presents to the court a compelling reason why termination of parental rights and adoption are not in the best interests of the child
    • Awarding permanent custody to the department or an authorized agency, if the department documents and presents to the court a compelling reason why adoption and legal guardianship are not in the best interests of the child

Determining the Best Interests of the Child

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Current Through March 2016

The policy and purpose of this chapter is to provide children with prompt and ample protection from the harms detailed herein, with an opportunity for timely reconciliation with their families if the families can provide safe family homes, and with timely and appropriate service or permanent plans to ensure the safety of the child so they may develop and mature into responsible, self-sufficient, law-abiding citizens.

The service plan shall work toward the child’s remaining in the family home, when the family home can be immediately made safe with services, or the child’s returning to a safe family home. The service plan shall be carefully formulated with the family in a timely manner. Every reasonable opportunity should be provided to help the child’s legal custodian succeed in remedying the problems that put the child at substantial risk of being harmed in the family home. Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian’s potential for providing a safe family home for the child. Full and careful consideration shall be given to the religious, cultural, and ethnic values of the child’s legal custodian when service plans are being discussed and formulated. Where the court has determined, by clear and convincing evidence, that the child cannot be returned to a safe family home, the child shall be permanently placed in a timely manner.

The policy and purpose of this chapter includes the protection of children who have been harmed or are threatened with harm by:

  • Providing assistance to families to address the causes for abuse and neglect
  • Respecting and using each family’s strengths, resources, culture, and customs
  • Ensuring that families are meaningfully engaged and children are consulted in an age-appropriate manner in case planning
  • Enlisting the early and appropriate participation of family and the family’s support networks
  • Respecting and encouraging the input and views of caregivers
  • Ensuring a permanent home through timely adoption or other permanent living arrangement, if safe reunification with the family is not possible

The child protective services under this chapter shall be provided with every reasonable effort to be open, accessible, and communicative to the persons affected by a child protective proceeding without endangering the safety and best interests of the child under this chapter.

This chapter shall be liberally construed to serve the best interests of the children affected and the purpose and policies set forth herein.

This chapter creates within the jurisdiction of the family court a child protective act to make paramount the safety and health of children who have been harmed or are in life circumstances that threaten harm. Furthermore, this chapter makes provisions for the service, treatment, and permanent plans for these children and their families.

The legislature finds that children deserve and require competent, responsible parenting and safe, secure, loving, and nurturing homes. The legislature finds that children who have been harmed or are threatened with harm are less likely than other children to realize their full educational, vocational, and emotional potential and become law-abiding, productive, self-sufficient citizens, and are more likely to become involved with the mental health system, the juvenile justice system, or the criminal justice system, as well as become an economic burden on the State. The legislature finds that prompt identification, reporting, investigation, services, treatment, adjudication, and disposition of cases involving children who have been harmed or are threatened with harm are in the children’s, their families’, and society’s best interests because the children are defenseless, exploitable, and vulnerable. The legislature recognizes that many relatives are willing and able to provide a nurturing and safe placement for children who have been harmed or are threatened with harm.

Grounds for Involuntary Termination of Parental Rights

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

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The family courts may terminate the parental rights to a child of any legal parent:

  • Who has deserted the child without affording means of identification for a period of at least 90 days
  • Who has voluntarily surrendered the care and custody of the child to another for a period of at least 2 years
  • Who, when the child is in the custody of another, has failed to communicate with the child or provide care and support for the child when able to do so for a period of at least 1 year
  • Whose child has been removed from the parent’s physical custody and who is found to be unable to provide now and in the foreseeable future the care necessary for the well-being of the child
  • Who is found by the court to be mentally ill or intellectually disabled and incapacitated from giving consent to the adoption of or from providing now and in the foreseeable future the care necessary for the well-being of the child
  • Who is found not to be the child’s natural or adoptive father

The court may also hold a permanency hearing to determine a placement for the child outside the parent’s home when the parent has subjected the child to aggravated circumstances. ‘Aggravated circumstances’ means that:

  • The parent has murdered, or has solicited, aided, abetted, attempted, or conspired to commit the murder or voluntary manslaughter of, another child of the parent.
  • The parent has committed a felony assault that results in serious bodily injury to the child or another child of the parent.
  • The parent’s rights regarding a sibling of the child have been judicially terminated or divested.
  • The parent has tortured the child.
  • The child is an abandoned infant.
  • The parent has committed sexual abuse against another child of the parent.
  • The parent is required to register with a sex offender registry.
Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

The child, the child’s guardian ad litem or attorney, or the department may file a motion to reinstate the terminated parental rights of the child’s parents when the child has been in permanent custody for at least 12 months and the child is age 14 or older.

At a preliminary hearing on the motion, the court may order a trial home placement and a temporary reinstatement of parental rights upon finding that:

  • There has been a material change in circumstances.
  • A parent is willing to provide care for the child.
  • A parent is able to provide a safe family home or the home can be made safe with the assistance of services.
  • A trial home placement is in the child’s best interests.

If the court issues a temporary order of reinstatement of parental rights:

  • The child shall be conditionally placed in the physical care of the parent for no longer than 6 months.
  • The department shall develop a permanent plan for reunification and ensure that transition services are provided to the family, as appropriate.

At a final hearing on the motion, the court may issue a final order of reinstatement of parental rights if the trial home placement has been successful. In making its final decision, the court shall determine whether:

  • Reinstatement of parental rights is in the best interests of the child, taking into consideration:
    • Whether a parent has remedied the conditions that caused the termination of parental rights
    • The age and maturity of the child and the child’s ability to express a preference
    • The likelihood of risk to the health, safety, or welfare of the child
  • The parent is able to provide the child with a safe family home.
  • Both the parent and child consent to the reinstatement of parental rights.
  • The permanent plan goals for the child have not been and are not likely to be achieved.

Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

A child who is no more than 72 hours old may be relinquished.

Who May Relinquish the Infant

A person may leave the child with a safe haven provider.

Who May Receive the Infant

The child may be left with the personnel of a hospital, fire station, police station, or emergency services provider.

Responsibilities of the Safe Haven Provider

When a person leaves a newborn child with a safe haven provider, the provider:

  • Shall make every reasonable effort to solicit the following information:
    • The child’s name
    • The name and address of the parent or person dropping off the child
    • Where the child was born
    • The child’s medical history
    • The child’s birth family’s medical history, including major illnesses and diseases
    • Any other information that might reasonably assist the Department of Human Services in determining the best interests of the child, including whether the parents plan to seek custody of the child in the future
  • May provide the person leaving the newborn child with information on how to contact relevant social service agencies
  • Shall notify appropriate law enforcement agencies that a child was received for purposes of matching the child with missing children reports

Refusal of the person leaving the child to provide personal information shall not prevent personnel from accepting the child.

If a safe haven provider receives a child, the provider shall perform any act necessary, in accordance with generally accepted standards of their respective professional practice, to protect, preserve, and aid the physical health and safety of the child during the temporary physical custody.

Within 24 hours of receiving an unharmed newborn child, the provider shall inform the department that a child has been left at the premises. The department shall not be informed until the person leaving the child has left the premises. If the child is received in a harmed condition, the provider shall notify appropriate law enforcement agencies, regardless of whether the person or persons leaving the child has left the premises.

Immunity for the Provider

A hospital, health-care provider, hospital personnel, fire station, firefighter, fire personnel, police station, police officer, police personnel, and emergency services personnel acting in good faith in receiving a newborn child shall be immune from:

  • Any criminal liability that otherwise might result from their actions
  • Any civil liability that otherwise might result from merely receiving a newborn child

A hospital, health-care provider, hospital personnel, fire station, firefighter, fire personnel, police station, police officer, police personnel, and emergency services personnel who are mandated reporters under § 350-1.1 shall be immune from any criminal or civil liability that otherwise might result from the failure to make a report if the person is acting in good faith in complying with this chapter.

Protection for Relinquishing Parent

A person may leave a newborn child at a safe haven without being subject to prosecution for abandonment of a child pursuant to § 709-902 provided that the newborn child is left in an unharmed condition.

Effect on Parental Rights

Upon receiving custody of a newborn child who has been discharged from a hospital that received the newborn child pursuant to § 587D-3, the Department of Human Services may reunite the newborn child with the newborn’s parents.

The department may search for relatives of the newborn child as a placement or permanency option or implement other placement requirements that give a preference to relatives provided that the department has information as to the identity of the newborn child, the newborn child’s mother, or the newborn child’s father.

For purposes of proceedings under this chapter and adoption proceedings, a newborn child left at a hospital, fire station, police station, or emergency services provider shall be considered an abandoned child.

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘hanai relative’ means an adult, other than a blood relative, whom the court or Department of Human Services has found by credible evidence to perform or to have performed a substantial role in the upbringing or material support of a child, as attested to by the written or oral designation of the child or of another person, including other relatives of the child.

The term ‘relative’ means a person related to a child by blood or adoption, or a hanai relative as defined in this chapter, who, as determined by the court or the department, is willing and able to safely provide support to the child and the child’s family.

In regulation: The term ‘caregiver’ means the child’s legal guardian(s) or permanent custodian(s).

The term ‘legal guardian’ means any adult who has been awarded legal guardianship of a child as the result of a judicial determination made at the time the department had placement responsibility of the child.

Purpose of Guardianship

A caregiver may be awarded legal guardianship of a child for whom the department has placement responsibility when:

  • A court has determined that the child cannot be reunified with the legal parents.
  • The department has determined that adoption is not a viable goal for the child due to factors that may include, but are not limited to, the child’s desire not to be adopted and/or the existence of significant ties to the current caregiver(s) who are unable or unwilling to adopt the child.
A Guardian’s Rights and Responsibilities

The legal guardianship shall be a judicially created relationship between the child and relative that is intended to be permanent and self-sustaining, as evidenced by the transfer to the legal guardian of the following parental rights with respect to the child:

  • Protection
  • Education
  • Care and control of the person
  • Custody of the person
  • Decision-making
Qualifying the Guardian

The Department of Human Services shall conduct criminal history record checks, child abuse and neglect registry checks, background checks, and any other checks of the prospective legal guardians and other adult household members that are deemed necessary. For each person, this background study shall include:

  • Fingerprint-based clearances completed by the Federal Bureau of Investigation in accordance with Federal and State statutes and departmental procedures
  • Checks of the State’s child abuse and neglect registry for all adult household members, including the registries in States where an adult resided within the preceding 5 years

The prospective legal guardians and other adult household members shall not have any of the following:

  • A felony conviction, at any time, for child abuse or neglect; spousal abuse; a crime against children (including child pornography); or a serious crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery
  • A felony conviction, within the last 5 years, for physical assault, battery, or a drug-related offense
  • Convictions of any other crimes that indicate that the person poses a risk to the health, safety, or well-being of children
  • An employment history indicating violence, alcohol or drug abuse, and any other violation of employer rule or policy that indicate that the person may pose a risk to the health, safety, or well-being of children

Background information that shows that the person has been confirmed to have committed child abuse or neglect or whose parental rights were terminated may be a basis for denial, unless the department determines that the person has established clear and convincing evidence of rehabilitation and does not pose a risk to the health, safety, or well-being of a child or children in the home.

Procedures for Establishing Guardianship

A person becomes a guardian of a minor by parental appointment or upon appointment by the court.

A minor or a person interested in the welfare of a minor may petition for appointment of a guardian. The court may appoint a guardian for a minor if the court finds the appointment is in the minor’s best interests, the parents consent to the guardianship, all parental rights have been terminated, or the parents are unwilling or unable to exercise their parental rights.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

The guardianship continues until terminated, without regard to the location of the guardian or minor ward.

Eligibility for Guardianship Subsidy

Federal title IV-E kinship guardianship assistance provides payments to relatives who assume legal guardianship of children for whom they have cared while foster parents. For a guardian to receive assistance, the following provisions apply:

  • The child must have been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child
  • The child must have been eligible for title IV-E foster care maintenance payments during a period of at least 6 consecutive months during which the child resided in the home of the prospective relative guardian who was unconditionally licensed as a foster family home
  • The department must determine that:
    • Return home and adoption have been ruled out as appropriate permanency options.
    • The child demonstrates a strong attachment to the prospective relative guardian.
    • The relative guardian has a strong commitment to caring permanently for the child.
  • The department must consult with a child who is age 14 or older regarding the kinship guardianship arrangement.

The eligible child and any sibling of the child may be placed in the same kinship guardianship arrangement if the department and the relative agree on the appropriateness of the arrangement for the siblings. Kinship guardianship assistance payments shall be paid on behalf of each sibling so placed, even if the sibling does not meet the eligibility criteria.

A guardian for a child who does not meet the criteria for title IV-E assistance may apply for State-funded permanency assistance.

Links to Agency Policies

Hawaii Department of Human Services, Comparison of Permanency Options (PDF – 66 KB)

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘hanai relative’ means an adult, other than a blood relative, whom the court or department has found by credible evidence to perform or to have performed a substantial role in the upbringing or material support of a child, as attested to by the written or oral designation of the child or of another person, including other relatives of the child.

The term ‘relative’ means a person related to a child by blood or adoption, or a hanai relative who, as determined by the court or the department, is willing and able to safely provide support to the child and the child’s family.

The term ‘resource family’ means a person or family licensed by the Department of Human Services or another authorized agency to provide foster care services for children and can be used interchangeably with ‘foster parent’ and ‘foster family.’

When a child must be placed outside of his or her home, placement preference shall be given to an approved relative.

Requirements for Placement with Relatives

When the department receives protective custody of a child from the police, the department shall:

  • Place the child in emergency foster care, unless the child is admitted to a hospital or similar institution, while the department conducts an appropriate investigation, with placement preference being given to an approved relative
  • Make reasonable efforts with authorized agencies to identify and notify all relatives within 30 days of assuming temporary foster custody of the child

The department shall provide the child’s relative with an application to be the child’s resource family within 15 days of the relative’s request to provide foster placement for the child. The department and authorized agencies shall make reasonable efforts to identify and notify all relatives of the child within 30 days after assuming foster custody of the child.

In conducting an investigation of harm to a child, the department may assume temporary foster custody of the child and file a petition with the court within 3 days, excluding Saturdays, Sundays, and holidays, after the date on which the department assumes temporary foster custody of the child, with placement preference being given to an approved relative.

Requirements for Placement of Siblings

At a foster custody hearing, the court shall determine whether every reasonable effort has been or is being made to place siblings or psychologically bonded children together, unless such placement is not in the children’s best interests.

At each permanency hearing, the court shall make written findings as to whether the department has made reasonable efforts, in accordance with the safety and well-being of the child, to:

  • Place siblings who have been removed from the family home with the same resource family, adoptive placement, or legal guardians
  • Provide for frequent visits or other on-going interactions with siblings who are not living in the same household
Relatives Who May Adopt

This issue is not addressed in the statutes reviewed.

Requirements for Adoption by Relatives

This issue is not addressed in the statutes reviewed.

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

To better understand this issue and to view it across States, download the PDF (539 KB) of this publication.

Current Through March 2016

What Are Reasonable Efforts

The service plan shall be carefully formulated with the family in a timely manner. Every reasonable opportunity should be provided to help the child’s legal custodian to succeed in remedying the problems that put the child at substantial risk of being harmed in the family home. Each appropriate resource, public and private, family and friend, should be considered and used to maximize the legal custodian’s potential for providing a safe family home for the child. Full and careful consideration shall be given to the religious, cultural, and ethnic values of the child’s legal custodian when service plans are being discussed and formulated.

The service plan shall provide the specific steps necessary to facilitate the return of the child to a safe family home, if the proposed placement of the child is in foster care under foster custody. These specific steps shall include treatment and services that will be provided, actions completed, specific measurable and behavioral changes that must be achieved, and responsibilities assumed.

When Reasonable Efforts Are Required

The service plan shall effectuate the child’s remaining in the family home, when the family home can be immediately made safe with services, or the child’s returning to a safe family home.

When Reasonable Efforts Are NOT Required

The court need not order a service plan if the court finds that aggravated circumstances are present. The term ‘aggravated circumstances’ means that:

  • The parent has murdered or has solicited, aided, abetted, attempted, or conspired to commit the murder or voluntary manslaughter of another child of the parent.
  • The parent has committed a felony assault that results in serious bodily injury to the child or another child of the parent.
  • The parent’s rights regarding a sibling of the child have been judicially terminated.
  • The parent has tortured the child.
  • The child is an abandoned infant.
  • The parent has committed sexual abuse against another child of the parent.
  • The parent is required to register with a sex offender registry under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. § 16913(a)).

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

A parent may appoint a guardian for any minor child.

How to Establish a Standby Guardian

A parent may appoint a guardian in a will or another signed writing. Before the appointment becomes effective, the court may confirm the parent’s selection of a guardian and terminate the rights of others to object upon:

  • Petition of an appointing parent
  • A finding that the appointing parent will likely become unable to care for the child within 2 years
  • Notice, as provided in § 560:5-205(a), has been given
How Standby Authority is Activated

The appointment of a guardian becomes effective upon one of the following:

  • The appointing parent’s death
  • An adjudication that the parent is an incapacitated person
  • A written determination by a physician who has examined the parent that states that the parent is no longer able to care for the child

The guardian becomes eligible to act upon the filing of an acceptance of appointment. This acceptance must be filed within 30 days after the guardian’s appointment becomes effective. The guardian shall:

  • File the acceptance of appointment and a copy of the will with the court or, in the case of another appointing instrument, file the acceptance of appointment and the appointing instrument with the court
  • Give written notice of the acceptance of appointment to the appointing parent, if living, the minor, if the minor has attained 14 years of age, and a person other than the parent having care and custody of the minor
Involvement of the Noncustodial Parent

Citation: Rev. Stat. § 560:5-203
Until the court has confirmed an appointee under § 560:5-202, a minor who is the subject of an appointment by a parent and who is age 14 or older, the child’s other parent, or a person other than a parent or guardian having care or custody of the minor, may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment.

Authority Relationship of the Parent and the Standby

The appointment may specify the desired limitations on the powers to be given to the guardian. The appointment of a guardian by a parent does not supersede the parental rights of either parent.

Withdrawing Guardianship

The appointing parent may revoke or amend the appointment before confirmation by the court.

The authority of a guardian appointed under this section terminates upon the appointment of a guardian by the court or the giving of written notice to the guardian of the filing of an objection pursuant to § 560:5-203, whichever occurs first.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

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7th Circuit

8th 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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3rd Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

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3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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