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

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

Idaho

 

Idaho Child Protection Manual

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 child’ means in the physical presence of a child or knowing that a child is present and may see or hear an act of domestic assault or battery. For purposes of this section, ‘child’ means a person under age 16.

Consequences

The maximum penalties provided in this section shall be doubled when the act of domestic assault or battery for which the person is convicted or pleads guilty took place in the presence of a child.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused’ means any case in which a child has been the victim of conduct or omission resulting in skin bruising, bleeding, malnutrition, burns, fracture of any bone, subdural hematoma, soft tissue swelling, failure to thrive, or death, and such condition or death is not justifiably explained; the history given concerning such condition or death is inconsistent with the degree or type of such condition or death; or the circumstances indicate that such condition or death may not be the product of an accidental occurrence.

Neglect

‘Neglected’ means a child:

  • Who is without proper parental care and control, subsistence, medical, or other care necessary for his or her well-being because of the conduct or omission of his or her parents, guardian, or other custodian, or their neglect or refusal to provide them
  • Whose parents, guardian, or other custodian is unable to discharge his or her responsibilities to and for the child and, as a result of such inability, the child lacks the parental care necessary for his or her health, safety, or well-being
  • Who has been placed for care or adoption in violation of the law
  • Who is without proper education because of the failure to comply with § 33-202
Sexual Abuse/Exploitation

The term ‘abused’ applies to any case in which a child has been the victim of sexual conduct, including rape, molestation, incest, prostitution, obscene or pornographic photographing, filming or depiction for commercial purposes, or other similar forms of sexual exploitation that harms or threatens the child’s health, welfare, or mental health.

Emotional Abuse

‘Mental injury’ means a substantial impairment in the intellectual or psychological ability of a child to function within a normal range of performance and/or behavior, for short or long terms.

Abandonment

Citation: Idaho Code § 16-1602
‘Abandoned’ means the failure of the parent to maintain a normal parental relationship with his or her child, including but not limited to reasonable support or regular personal contact. Failure to maintain this relationship without just cause for a period of 1 year shall constitute prima facie evidence of abandonment.

Standards for Reporting

Citation: Idaho Code § 16-1605
A report is required when any person has reason to believe that a child younger than age 18 has been abused, abandoned, or neglected or observes the child being subjected to conditions or circumstances that would reasonably result in abuse, abandonment, or neglect.

Persons Responsible for the Child

‘Responsible persons’ include the parent, guardian, or other custodian.

Exceptions

No child whose parent chooses for the child treatment by prayers through spiritual means in lieu of medical treatment shall be deemed for that reason alone to be neglected. This exception shall not prevent the court from ordering emergency medical treatment when the child’s life is endangered.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means the physical injury, sexual abuse, or forced imprisonment or threat thereof of a family or household member, or of a minor child by a person with whom the minor child has had or is having a dating relationship, or of an adult by a person with whom the adult has had or is having a dating relationship.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Traumatic injury’ means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force.

Any household member who, in committing a battery as defined in § 18-903, inflicts a traumatic injury upon any other household member is guilty of a felony.

A household member who commits an assault, as defined in § 18-901, against another household member that does not result in traumatic injury is guilty of a misdemeanor domestic assault.

A household member who commits a battery, as defined in § 18-903, against another household member that does not result in traumatic injury is guilty of a misdemeanor domestic battery.

Persons Included in the Definition

In civil law: ‘Family member’ means spouses, former spouses, and persons related by blood, adoption, or marriage.

‘Household member’ means persons who reside or have resided together and persons who have a child in common regardless of whether they have been married or have lived together at any time.

‘Dating relationship,’ for the purposes of this chapter, is defined as a social relationship of a romantic nature. Factors that the court may consider in making this determination include:

  • The nature of the relationship
  • The length of time the relationship has existed
  • The frequency of interaction between the parties
  • The time since termination of the relationship, if applicable

In criminal law: ‘Household member’ means a person who is a spouse, former spouse, or a person who has a child in common regardless of whether they have been married, or a person with whom a person is cohabiting, whether or not they have married or have held themselves out to be husband or wife.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person who has reason to believe that a child has been abused, abandoned, or neglected, and acting upon that belief makes a report of abuse, abandonment, or neglect as required by the reporting laws, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.

Any person who reports in bad faith or with malice shall not be protected by this section.

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 a child has been abused, neglected, or abandoned shall report within 24 hours to a law enforcement agency or the Department of Health and Welfare.

Content of Reports

The report shall contain a description of the conditions and circumstances that led to making the report.

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

Each region of the Department of Health and Welfare shall maintain a system for receiving and responding to reports or complaints on a 24-hour-per-day, 7-day-per-week basis throughout the entire region. The region shall advertise the system to the public throughout the region and ensure the accurate recording of as many facts as possible at the time of the report.

Initial Screening Decisions

The department must assign all reports of possible abuse, neglect, or abandonment for safety assessment unless the field office has knowledge or information that discredits the report beyond a reasonable doubt.

Agency Conducting the Assessment/Investigation

The Department of Health and Welfare is the official child protection agency dealing with situations of reported child abuse, neglect, or abandonment. A respectful, nonjudgmental approach should be the policy for assessments, especially during the initial contact with the family.

Possible abuse, abandonment, or neglect of a child who is known or suspected to be Indian will be reported to appropriate Tribal authorities immediately. If the reported incident occurs off a reservation, the department will perform the investigation. The department also will investigate incidents reported on a reservation if requested to do so by appropriate authorities of the Tribe. A record of any response will be maintained in the case record and written documentation will be provided to the appropriate Tribal authorities.

Reports involving a military family must be reported to the appropriate military family advocacy representative. Abuse, neglect, or abandonment of a child on a military installation falls under Federal jurisdiction.

Assessment/Investigation Procedures

The assessment must include contact with the children involved and the immediate family and a records check for history with respect to child protection issues.

The interview of a child concerning a child protection report must be conducted:

  • In a manner that protects all children involved from undergoing any unnecessary traumatic experience, including multiple interviews
  • By a professional with specialized training in using techniques that consider the natural communication modes and developmental stages of children
  • In a neutral, nonthreatening environment, such as a specially equipped interview room, if available

The interview of the child’s immediate family is mandatory in every case and may require the participation of law enforcement. The family services worker conducting the interview must:

  • Immediately notify the parents being interviewed of the purpose and nature of the assessment
  • Determine if the family is of Indian heritage for the purposes of the Indian Child Welfare Act
  • Interview siblings who are identified as being at risk
  • Not divulge the name of the person making the report of child abuse or neglect

Any assessment of an abuse or neglect report must include at least one collateral interview with a person who is familiar with the circumstances of the child or children involved.

A safety assessment will be completed on each referral assigned for assessment of abuse or neglect, or both. When safety threats are identified in the safety assessment and the case remains open for services, a comprehensive assessment must be completed.

The department may enlist the cooperation of peace officers for phases of the safety assessment for which they have the expertise and responsibility, as consistent with the relevant multidisciplinary team protocol.

Timeframes for Completing Investigations

The level of response required will be based on the following criteria:

  • Priority I: The department must respond immediately if a child is in immediate danger involving a life-threatening or emergency situation. Law enforcement shall be notified and requested to respond or accompany the family services worker.
  • Priority II: A child is not in immediate danger, but there are clear allegations of physical or sexual abuse or medical neglect. Law enforcement shall be notified within 24 hours, and the child must be seen by the family services worker within 48 hours.
  • Priority III: A child may be in a vulnerable situation because of service needs that, if left unmet, may result in harm, or a child is without parental care. A family services worker shall respond within 3 days, and the child must be seen within 5 days.
Classification of Reports

Within 5 days following completion of safety assessments, the department will determine whether the reports are substantiated or unsubstantiated.

Child abuse, neglect, or abandonment reports are substantiated by one or more of the following:

  • It was witnessed by a family services worker.
  • A court determines, in an adjudicatory hearing, that a child comes within the jurisdiction of the Child Protective Act.
  • The alleged perpetrator made a confession.
  • The abuse or neglect was corroborated by physical or medical evidence.
  • The abuse or neglect was established by evidence that it is more likely than not that abuse, neglect, or abandonment occurred.

Child abuse, neglect, or abandonment reports are unsubstantiated when they are not found to be substantiated. For intradepartmental statistical purposes, the department will indicate whether the unsubstantiated disposition of the safety assessment was due to insufficient evidence or was an erroneous report.

Parental Drug Use as Child Abuse

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Current Through April 2015

Except as authorized in this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance as defined in Schedules I, II, III, and IV in this chapter, upon the same premises where a child under age 18 is present. Schedules I, II, III, and IV controlled substances include opiates, hallucinogens, cannabis, stimulants, depressants, anabolic steroids, hormones, and narcotics [as defined in §§ 37-2705, 37-2707, and 37-2709].

As used in this section, ‘premises’ means any:

  • Motor vehicle or vessel
  • Dwelling or rental unit including, but not limited to, an apartment, townhouse, condominium, mobile home, manufactured home, motel room, or hotel room
  • Dwelling house, its curtilage, and any other outbuildings

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In any child protection proceeding for a child under age 12, the court shall appoint a guardian ad litem (GAL) for the child or children and shall appoint counsel to represent the GAL, unless the GAL is already represented by counsel. If a court does not have available to it a GAL program or a sufficient number of GALs, the court shall appoint counsel for the child. In appropriate cases, the court may appoint a GAL for the child and counsel to represent the GAL and may, in addition, appoint counsel to represent the child.

In any child protection proceeding for a child age 12 or older, the court:

  • Shall appoint counsel to represent the child and may, in addition, appoint a GAL
  • When appointment of counsel is not practicable or not appropriate, may appoint a GAL for the child and shall appoint counsel to represent the GAL, unless the GAL is already represented by counsel
The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Under rules, policies, and procedures adopted by the Idaho Supreme Court, a judicial district may establish, maintain, and coordinate a districtwide GAL program that will:

  • Furnish administrative and staffing services
  • Act as a coordinator for providing GALs for children needing them
  • Establish a program for attorneys to represent GALs
  • To the extent possible, establish a districtwide program to recruit volunteer GALs sufficient to provide services in each county of the judicial district
  • Develop uniform criteria to screen, select, train, and remove GALs
  • Establish a priority list of the proceedings in which a GAL shall be appointed in districts where there are insufficient numbers of GALs

The coordinators and staff members of any GAL program and any persons volunteering to serve as GALs shall submit to a fingerprint-based criminal history check through any law enforcement office in the State providing such service. The criminal history check shall include a statewide Criminal Identification Bureau check, Federal Bureau of Investigation criminal history check, and statewide sex offender registry check. A record of all background checks shall be maintained in the Office of the Supreme Court with a copy going to the applicant.

Specific Duties

The GAL shall advocate for the best interests of the child and shall have the following duties:

  • To conduct an independent investigation of the circumstances of the child
  • To file with the court prior to any hearing a written report of the results of the investigation, the GAL’s recommendations, and any other information the court may require
  • To act as an advocate for the child
  • To participate fully in the proceedings
  • To confer with the child, the child’s siblings and parents, and any other person having information relevant to the case
  • To monitor the circumstances of a child and to ensure that the terms of the court’s orders are fulfilled and remain in the best interests of the child
  • To maintain the confidentiality of all information regarding the case
  • Other duties as ordered by the court

In all postadjudicatory reports, the GAL shall inquire of any child capable of expressing his or her wishes regarding permanency and, when applicable, the transition from foster care to independent living and include the child’s express wishes in the report to the court. The GAL’s written report shall be delivered to the court, with copies to all parties to the case, at least 5 days before the date of the hearing. The report submitted prior to the adjudicatory hearing shall not be admitted into evidence at the hearing and shall be used by the court only for disposition of the child.

If represented by counsel, the GAL may file pleadings, motions, memoranda, and briefs on behalf of the child, and shall have all of the rights of a party. All parties to the case shall promptly notify the GAL and the GAL’s attorney of all hearings, staffings, investigations, depositions, and significant changes of circumstances of the child.

Except as prohibited by Federal or State law, any person or agency shall permit the GAL to inspect and copy pertinent records relating to the child and parent without consent of the child or parents.

How the Representative Is Compensated

Counsel appointed for the child shall be paid for by the county unless the party for whom counsel is appointed has an independent estate sufficient to pay such costs.

There shall be a GAL account in the agency asset fund in the State Treasury. The account shall consist of:

  • Moneys appropriated to the account
  • Donations, gifts, and grants to the account from any source
  • Any other moneys that may hereafter be provided by law

Moneys in the account may be expended for the purposes provided in §§ 16-1632 through 16-1638. Interest earned on the investment of idle money in the GAL account shall be returned to the GAL account.

Disbursements of moneys from the account shall be by appropriation from the legislature to the Supreme Court. The moneys shall be used for the payment of grants to qualified recipients and for expenses incurred for carrying out the provisions of this chapter.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

In every case in which the child is determined to be within the jurisdiction of the court, and there is no judicial determination that aggravated circumstances were present, the Department of Health and Welfare shall prepare a written case plan, including in cases in which the parent is incarcerated. The court shall schedule a case plan hearing to be held within 30 days after the adjudicatory hearing. The case plan shall be filed with the court no later than 5 days prior to the case plan hearing.

In regulation: The department must complete a written alternate care plan within 30 days after a child has been placed in alternate care and at least every 6 months thereafter. A copy of the alternate care plan will be provided to the child’s parent, legal guardian, foster parent, Indian custodian, Tribe, and to the child if he or she is older than age 12.

Who May Participate in the Case Planning Process

Copies of the case plan shall be delivered to the parents and other legal guardians, the prosecuting attorney or deputy attorney general, the guardian ad litem, and attorney for the child.

Notice of the case plan hearing shall be provided to the parents and other legal guardians, the prosecuting attorney or deputing attorney general, the guardian ad litem, attorney for the child, the department, and foster parents.

Although foster parents are provided notice of this hearing, they are not parties to the child protective action.

In regulation: The family case plan, also referred to as a family service plan, is a written document that serves as the guide for provision of services. The plan, developed with the family, clearly identifies who does what, when, how, and why. The family plan incorporates any special plans made for individual family members. If the family includes an Indian child, then the child’s Tribe, Tribal elders, or leaders should be consulted early in the plan development.

Contents of a Case Plan

If the child is placed in the legal custody of the department, the case plan shall set forth reasonable efforts that will be made to make it possible for the child to return home. The case plan also shall:

  • Identify the services to be provided to the child, including services to identify and meet any special educational, emotional, physical, or developmental needs the child may have and services to assist the child in adjusting to the placement or to ensure the stability of the placement
  • Address options for maintaining the child’s connection to the community, including individuals with a significant relationship to the child
  • Include a goal of reunification and a plan for achieving that goal
  • Include a concurrent permanency goal and a plan for achieving that goal

The reunification plan shall identify all issues that need to be addressed before the child can safely be returned home without department supervision. The plan shall specifically identify the tasks to be completed by the department, each parent, or others to address each issue, including services to be made available by the department to the parents and in which the parents are required to participate, as well as deadlines for completion of each task. The case plan shall state with specificity the role of the department toward each parent. When appropriate, the plan should identify terms for visitation, supervision of visitation, and child support.

The concurrent permanency goal may be one of the following: termination of parental rights and adoption, guardianship, or another planned permanent living arrangement. The concurrent plan shall:

  • Address all options for permanent placement of the child, including consideration of options for in-State and out-of-State placement
  • Address the advantages and disadvantages of each option and include a recommendation as to which option is in the child’s best interests
  • Identify the actions necessary to implement the recommended option
  • Set forth a schedule for accomplishing the actions necessary to implement the concurrent permanency goal
  • Address options for maintaining the child’s connection to the community, including individuals with a significant relationship to the child, and organizations or community activities with which the child has a significant connection
  • In the case of a child who has reached age 16, include the services needed to assist the child to make the transition from foster care to independent living
  • Identify further investigation necessary to identify or assess other options for permanent placement, to identify actions necessary to implement the recommended placement, or to identify options for maintaining the child’s significant connections

If the child has been placed under protective supervision of the department, the case plan shall:

  • Identify the services to be provided to the child, including services to identify and meet any special educational, emotional, physical, or developmental needs the child may have
  • Address options for maintaining the child’s connection to the community, including individuals with a significant relationship to the child, and organizations or community activities with which the child has a significant connection
  • Identify all issues that need to be addressed to allow the child to remain at home without department supervision
  • Identify the tasks to be completed by the department, the parents, or others to address each issue, including services to be made available by the department to the parents and in which the parents are required to participate, and deadlines for completion of each task

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

If aggravated circumstances are found, a permanency hearing for the child shall be held within 30 days of the determination of aggravated circumstances. In every case in which the child is determined to be within the jurisdiction of the court, including cases in which the parent is incarcerated, and there is no judicial determination that aggravated circumstances were present, the Department of Health and Welfare shall prepare a written case plan. The court shall schedule a case plan hearing to be held within 30 days after the adjudicatory hearing.

A hearing for a review of the child’s case and permanency plan shall be held no later than 6 months after the entry of the court’s order taking jurisdiction over the child and every 6 months thereafter. A permanency hearing shall be held no later than 12 months from the date the child is removed from the home or the date of the court’s order taking jurisdiction under this chapter, whichever occurs first, and at least every 12 months thereafter, so long as the court has jurisdiction over the child. The permanency hearing may be combined with the review hearing.

Persons Entitled to Attend Hearings

Notice of the case plan hearing shall be provided to the child’s parents and other legal guardians, the prosecuting attorney or deputing attorney general, the guardian ad litem, the attorney for the child, the department, and foster parents. Although foster parents are provided notice of this hearing, they are not parties to the child protective action.

Determinations Made at Hearings

The purpose of the case review hearing is to determine:

  • The safety of the child
  • The continuing necessity for and appropriateness of the placement
  • The extent of compliance with the case plan
  • The extent of progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care
  • When reasonable, a likely date by which the child may be safely returned to and maintained in the home or placed in another permanent placement

At the permanency hearing the court shall approve, reject, or modify the permanency plan of the department and review progress in accomplishing the permanency goal. The court shall make written case-specific findings whether the department made reasonable efforts to finalize the primary permanency goal in effect for the child. Lack of reasonable efforts to reunify may be a basis for an order approving a permanency plan with a permanency goal of reunification.

When the permanency goal is not reunification, the hearing shall include a review of the department’s consideration of options for in-State and out-of-State placement of the child. In the case of a child in an out-of-State placement, the court shall determine whether the out-of-State placement continues to be appropriate and in the best interests of the child. In the case of a child who has reached age 16, the hearing shall include a determination of the services needed to assist the child to make the transition from foster care to Independent Living.

The court may authorize the department to suspend further efforts to reunify the child with the child’s parent, pending further order of the court, when a permanency plan is approved by the court and the permanency plan does not include a permanency goal of reunification.

Permanency Options

The permanency plan shall include a permanency goal. The permanency goal may be one of the following:

  • In the absence of a judicial determination of aggravated circumstances, continued efforts at reunification
  • Termination of parental rights and adoption, guardianship, or another planned permanent living arrangement

The court may approve a permanency plan that includes a primary goal and a concurrent goal. The court may approve a primary permanency goal of another planned permanent living arrangement only upon written, case-specific findings that there are compelling reasons why a more permanent goal is not in the best interests of the child.

Determining the Best Interests of the Child

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

Current Through March 2016

The policy of the State of Idaho is hereby declared to be the establishment of a legal framework conducive to the judicial processing, including periodic review of child abuse, abandonment, and neglect cases and the protection of any child whose life, health, or welfare is endangered. At all times, the health and safety of the child shall be the primary concern.

Each child coming within the purview of this chapter shall receive, preferably in his or her own home, the care, guidance, and control that will promote his or her welfare and the best interests of the State of Idaho; and if he or she is removed from the control of one or more of his or her parents, guardian, or other custodian, the State shall secure adequate care for him or her, provided, however, that the State of Idaho shall, to the fullest extent possible, seek to preserve, protect, enhance, and reunite the family relationship.

Nothing in this chapter shall be construed to allow discrimination on the basis of disability. This chapter seeks to coordinate efforts by State and local public agencies, in cooperation with private agencies and organizations, citizens’ groups, and concerned individuals, to:

  • Preserve the privacy and unity of the family, whenever possible
  • Take such actions as may be necessary and feasible to prevent the abuse, neglect, abandonment, or homelessness of children
  • Take such actions as may be necessary to provide the child with permanency, including concurrent planning
  • Clarify for the purpose of this act the rights and responsibilities of parents with joint legal or joint physical custody of children at risk

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 court may grant an order terminating parental rights when it finds that such termination is in the best interests of the child and that one or more of the following conditions exist:

  • The parent has abandoned the child.
  • The parent has neglected or abused the child.
  • The presumptive parent is not the biological parent of the child.
  • The parent is unable to discharge parental responsibilities, and such inability will continue for a prolonged indeterminate period and will be injurious to the health, morals, or well-being of the child.
  • The parent has been incarcerated and is likely to remain incarcerated for a substantial period of time during the child’s minority.
  • The parent caused the child to be conceived as a result of rape, incest, lewd conduct with a minor child under age 16, or sexual abuse of a child under age 16.
  • The parent has subjected the child to torture, chronic abuse, or sexual abuse.
  • The parent has committed murder or intentionally killed the other parent of the child; has committed murder or voluntary manslaughter of another child; or has aided, abetted, conspired or solicited to commit such murder or voluntary manslaughter.
  • The parent has committed battery that resulted in serious bodily injury to a child.
  • The court determines the child to be an abandoned infant, except in a parental termination action brought by one parent against another parent.
Circumstances That Are Exceptions to Termination of Parental Rights

If the parent has a disability, the parent shall have a right to provide evidence to the court regarding the manner in which adaptive equipment or supportive services will enable the parent to carry out parenting responsibilities.

If the child has been placed in the legal custody of the Department of Health and Welfare or under its protective supervision, the department may petition the court for termination of the parent and child relationship in accordance with chapter 20, title 16. Unless there are compelling reasons it would not be in the best interests of the child, the department shall be required to file a petition to terminate parental rights within 60 days of a judicial determination that an infant has been abandoned or that reasonable efforts are not required because the parent has subjected the child to aggravated circumstances. The department shall join as a party to a petition filed by another party, as well as to concurrently identify, recruit, process, and approve a qualified family for adoption, unless it is determined that such actions would not be in the best interests of the child or the child is placed with a fit and willing relative.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

A child who is no more than 30 days old may be delivered to a safe haven provider.

Who May Relinquish the Infant

A custodial parent may deliver the child to a safe haven provider.

Who May Receive the Infant

Safe haven providers include:

  • Licensed hospitals
  • Licensed physicians and staff working at their offices and clinics
  • Advanced practice professional nurses, including certified nurse-midwives, clinical nurse specialists, nurse practitioners, and certified registered nurse anesthetists
  • Licensed physician assistants
  • Medical personnel certified as first responders, emergency medical technicians, and paramedics
Responsibilities of the Safe Haven Provider

A safe haven shall take temporary physical custody of a child, without court order, if the child is personally delivered to a safe haven, provided that:

  • The child is no more than 30 days old.
  • The custodial parent delivers the child to the safe haven.
  • The custodial parent does not express an intent to return for the child.

If a safe haven takes temporary physical custody of a child, the safe haven shall:

  • Perform any act necessary, in accordance with generally accepted standards of professional practice, to protect, preserve, or aid the physical health and safety of the child during the temporary physical custody including, but not limited to, delivering the child to a hospital for care or treatment
  • Immediately notify a peace officer or other person appointed by the court of the abandonment

Upon notification by a safe haven that a child has been abandoned, a peace officer or other person appointed by the court shall take protective custody of the child and shall immediately deliver the child to the care, control, and custody of the Department of Health and Welfare. If the child requires further medical evaluation, care, or treatment, the child shall be left in the care of a hospital, and the peace officer shall notify the court and prosecutor of the action taken and the location of the child so that a shelter care hearing may be held.

Immunity for the Provider

A safe haven with responsibility for performing duties under this section and any employee, doctor, or other personnel working at the safe haven are immune from any civil or criminal liability that otherwise might result from their actions, if they are acting in good faith in receiving a child and performing duties under this section.

A peace officer or other person appointed by the court who takes a child into custody under this section shall not be held liable, either criminally or civilly, unless the action of taking the child was exercised in bad faith or in violation of the provisions of this chapter.

Protection for Relinquishing Parent

The safe haven provider shall not inquire as to the identity of the custodial parent and, if the identity of a parent is known to the safe haven provider, the provider shall keep all information as to the parent’s identity confidential. The custodial parent leaving the child shall not be required to provide any information to the safe haven provider but may voluntarily provide information including, but not limited to, medical history of the parent(s) or the child.

A custodial parent may leave a child at a safe haven without being subjected to prosecution for abandonment, provided that the child was no more than 30 days old when he or she was left at the safe haven, as determined within a reasonable degree of medical certainty.

Effect on Parental Rights

The Department of Health and Welfare shall place an abandoned child with a potential adoptive parent as soon as possible.

The department shall file a petition for an adjudicatory hearing to vest legal custody in the department. A child protective investigation or criminal investigation shall not be initiated based on a claim of abandonment unless a claim of parental rights is made and the court orders the investigation.

During the initial 30-day period from the time the child was relinquished, law enforcement officials shall investigate through the missing children information clearinghouse and other State and national resources to ensure that the child is not a missing child. As soon as practicable following the 30-day period, the department shall petition to terminate the parental rights of the parent who abandoned the child.

A parent of the child may make a claim of parental rights by filing a notice of claim of parental rights with the vital statistics unit of the Department of Health and Welfare. To be valid, a claim of parental rights must be filed before an order terminating parental rights is entered by the court. A parent who fails to file a claim of parental rights prior to entry of an order terminating his or her parental rights is deemed to have abandoned the child and waived and surrendered any right in relation to the child, including the right to notice of any judicial proceeding in connection with the termination of parental rights or adoption of the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘legal custody’ means the status created by a court order that vests in a custodian the following rights and responsibilities:

  • To have physical custody and control of the child and to determine where and with whom the child shall live
  • To supply the child with food, clothing, shelter, and incidental necessities
  • To provide the child with care, education, and discipline
  • To authorize medical, dental, psychiatric, psychological, and other care and treatment for the child

‘Guardianship of the person’ means those rights and duties imposed upon a person appointed as guardian of a minor under State law. It includes, but is not necessarily limited to:

  • The authority to consent to marriage; enlistment in the armed forces of the United States; major medical, psychiatric, and surgical treatment
  • The authority to represent the minor in legal actions and to make other decisions concerning the child of substantial legal significance
  • The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order
  • The rights and responsibilities of legal custody, except when legal custody has been vested in another individual or in an authorized child-placing agency
  • The authority to consent to the adoption of the child and to make any other decision concerning the child that the child’s parents could make when the parental rights of both parents have been terminated by judicial decree or when there is no living parent

In policy: A ‘relative’ is an individual who has a relationship with a child by blood, marriage, or adoption. Such individuals include grandparents, siblings, and extended family members such as aunts, uncles, and cousins.

A ‘relative guardian’ is a relative who is appointed a child’s legal guardian, including a guardianship established by a Tribal court.

Purpose of Guardianship

Legal guardianship should be considered when:

  • Efforts to reunify the youth with parents have been exhausted and it remains unsafe for the youth to return home.
  • A more permanent option, such as adoption, is not feasible.
  • The youth is not amenable to adoption.
  • The youth is living with a relative who is interested in being a permanent resource for the youth.
  • The youth and family do not agree with termination of parental rights and adoption.
A Guardian’s Rights and Responsibilities

A legal guardianship is a relationship that is intended to be permanent and self-sustaining, as evidenced by the transfer to the 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 Health and Welfare or its contractor will determine the suitability of an individual to become a legal guardian for a specific child or sibling group through a guardianship study.

To be eligible for a federally funded guardianship assistance payment, all prospective legal guardians and other adult members of the household must receive a criminal history and background check clearance. As a licensed foster parent, if the prospective relative legal guardian has already received a clearance, another check is not necessary.

Procedures for Establishing Guardianship

A legal guardianship is a judicially created relationship, including one made by a Tribal court, between a child and a relative or nonrelative.

Legal guardianship does not require a termination of parental rights. The legal guardian is awarded legal custody of a child. Since it is mediated by court review, legal guardianship is considered a positive permanency option when adoption is not possible or practical.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

If at any time the legal guardian or the child’s parent wants to terminate the guardianship, he or she must file a petition and go before a court to have the legal relationship dissolved.

Eligibility for Guardianship Subsidy

To receive guardianship assistance, a potential legal guardian must apply for and receive a foster care license.

The Department of Health and Welfare will determine eligibility for guardianship assistance for each child placed in the legal custody of the department prior to the finalization of the guardianship. The child will first be considered for eligibility for a federally funded subsidy. Should the child be found ineligible for a federally funded subsidy, the child will then be considered for a State-funded subsidy.

The following requirements apply to a federally funded guardianship assistance for an eligible child and a relative guardian. A child is eligible for a federally funded guardianship if the child:

  • Is age 14 or older sometime during the consecutive 6-month residence with the prospective relative legal guardian
  • Has 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
  • Cannot be returned home or adopted because it is determined that those are not appropriate permanency options for the child
  • Has been eligible for title IV-E foster care maintenance payments during at least 6 consecutive months during which the child resided in the home of the prospective relative legal guardian who was licensed or approved as a foster family home
  • Has been consulted regarding the legal guardianship arrangement
  • Has demonstrated a strong attachment to the prospective relative legal guardian, and the relative legal guardian has a strong commitment to caring permanently for the child

The department may make guardianship assistance payments in accordance with a guardianship assistance agreement on behalf of each sibling of an eligible child, under age 18, who is placed with the same relative under the same legal guardianship arrangement.

Links to Agency Policies

Idaho Department of Health and Welfare Child Welfare Standards, Standard for Guardianship Assistance (PDF – 101 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

At any time the Department of Health and Welfare is considering placing a child in out-of-home care, the department shall make a reasonable effort to place the child in the least restrictive environment to the child and in so doing shall consider, consistent with the best interests and special needs of the child, placement priority of the child in the following order:

  • A fit and willing relative
  • A fit and willing nonrelative who has a significant relationship with the child
  • Foster parents and other persons licensed in accordance with title 39, chapter 12

The term ‘relative’ means a child’s grandparent, great-grandparent, aunt, great-aunt, uncle, great-uncle, brother-in-law, sister-in-law, first cousin, sibling, and half-sibling.

In regulation: The department will make meaningful reasonable attempts, both verbally and in writing, to inform individuals identified below of the potential imminent placement and the requirements for consideration as a placement resource. Ideally, placement priority will be given in the following order:

  • Immediate family
  • Extended family members
  • Nonfamily members with a significant established relationship with the child
  • Other licensed foster parents
Requirements for Placement with Relatives

The department will place children in a safe and trusted environment consistent with the best interests and special needs of the children as required by P.L. 96-272, § 475(5).

Upon immediate contact with persons in categories listed above, and after preliminary screening, departmental staff will make reasonable attempts to inform immediate family members of the way to become a placement resource within 72 hours of the decision to place.

In all cases, alternate care placement will include consideration of:

  • A family assessment of potential caregivers
  • The ability of potential caregivers to address and be sensitive to the unique and individual needs of the child and their ability to comply with and support the plan for the child and the child’s family
  • The involvement of the family in planning and selecting the placement

The department will use a family unity meeting concept in making reasonable efforts to gather immediate and extended family members and other significant supporters to identify family strengths relevant to creating a safe environment for the child.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

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

Requirements for Adoption by Relatives

In those instances where the prospective adoptive parent is the grandparent of the child to be adopted, a social investigation shall be completed with regard to the prospective adoptive parent only upon order of the court.

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 Department of Health and Welfare shall prepare a written case plan in every case in which the child is determined to be within the jurisdiction of the court, including cases in which the parent(s) is incarcerated.

If the child is placed in the legal custody of the department, the case plan shall set forth reasonable efforts that will be made to make it possible for the child to return home. The case plan also shall:

  • Identify the services to be provided to the child, including services to identify and meet any special educational, emotional, physical, or developmental needs the child may have; to assist the child in adjusting to the placement; or to ensure the stability of the placement
  • Address options for maintaining the child’s connection to the community, including individuals with a significant relationship to the child, and organizations or community activities with which the child has a significant connection
  • Include a goal of reunification and a plan for achieving that goal

The reunification plan shall identify all issues that need to be addressed before the child can safely be returned home without department supervision. The reunification plan shall specifically identify the tasks to be completed by the department, each parent, or others to address each issue, including services to be made available by the department to the parents and in which the parents are required to participate, and deadlines for completion of each task. The case plan shall state with specificity the role of the department toward each parent. When appropriate, the reunification plan should identify terms for visitation, supervision of visitation, and child support.

When Reasonable Efforts Are Required

If the court vests legal custody in the department or other authorized agency, the court shall make detailed written findings based on facts in the record as to whether the department made reasonable efforts to prevent the placement of the child in foster care, including findings, when appropriate, that:

  • Reasonable efforts were made but were not successful in eliminating the need for foster care placement of the child.
  • The department made reasonable efforts to prevent removal but was not able to safely provide preventive services.
  • Reasonable efforts to temporarily place the child with related persons were made but were not successful.
  • Reasonable efforts were not required as the parent had subjected the child to aggravated circumstances.
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if the parent has subjected the child to aggravated circumstances as determined by the court. ‘Aggravated circumstances’ includes, but is not limited to:

  • Circumstances in which the parent has engaged in any of the following:
    • Abandonment, chronic abuse, or chronic neglect of the child
      • Chronic neglect or chronic abuse of a child shall consist of abuse or neglect that is so extreme or repetitious as to indicate that return of the child to the home would result in unacceptable risk to the health and welfare of the child.
    • Sexual abuse against a child of the parent, which includes any conduct described in §§ 18-1506, 18-1506A, 18-1507, 18-1508, 18-1508A, 18-6101, 18-6108, or 18-6608
    • Torture of a child; any conduct described in the code sections listed in § 18-8303(1) (including ritualized abuse of a child, lewd conduct, murder committed in the perpetration of rape, kidnapping committed for the purpose of rape, committing an infamous crime against nature, committing any lewd and lascivious act upon any child under age 16 for purposes of sexual gratification or arousal, rape, forcible sexual penetration by use of a foreign object, or sex trafficking); battery or an injury to a child that results in serious or great bodily injury to a child; voluntary manslaughter of a child; or aiding or abetting such voluntary manslaughter, soliciting such voluntary manslaughter, or attempting or conspiring to commit such voluntary manslaughter
  • The parent has committed murder, aided or abetted a murder, solicited a murder, or attempted or conspired to commit murder.
  • The parental rights of the parent to another child have been terminated involuntarily.

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

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

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7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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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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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

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9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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