How to write a Motion To Dismiss for DCFS / CPS Juvenile Court In Illinois

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

Illinois

 Rules and Regulations

PART 300 REPORTS OF CHILD ABUSE AND NEGLECT

PART 301 PLACEMENT AND VISITATION SERVICES

PART 315 PERMANENCY PLANNING

PART 316 ADMINISTRATIVE CASE REVIEWS AND COURT HEARINGS

PART 336 APPEAL OF CHILD ABUSE AND NEGLECT INVESTIGATION FINDINGS

 Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: For purposes of this section:

  • ‘Child’ means a person under 18 years of age who is the defendant’s or victim’s child or stepchild or who is a minor child residing within or visiting the household of the defendant or victim.
  • ‘In the presence of a child’ means in the physical presence of a child or knowing or having reason to know that a child is present and may see or hear an act constituting an offense.
Consequences

In addition to any other sentencing alternatives, a defendant who commits, in the presence of a child, a felony domestic battery, aggravated domestic battery, aggravated battery, unlawful restraint, or aggravated unlawful restraint against a family or household member shall be:

  • Required to serve a mandatory minimum imprisonment of 10 days, perform 300 hours of community service, or both
  • Liable for the cost of any counseling required for the child at the discretion of the court

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused child’ means a child whose parent, immediate family member, any person responsible for the child’s welfare, any individual residing in the same home as the child, or a paramour of the child’s parent:

  • Inflicts, causes or allows to be inflicted, or creates a substantial risk of physical injury by other than accidental means that causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function
  • Commits or allows to be committed an act or acts of torture upon the child
  • Inflicts excessive corporal punishment
  • Commits or allows to be committed the offense of female genital mutilation
  • Causes a controlled substance to be sold, transferred, distributed, or given to the child under age 18, in violation of the Illinois Controlled Substances Act or Methamphetamine Control and Community Protection Act
  • Commits or allows to be committed the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons, as defined in chapter 720, § 5/10-9, against the child
Neglect

‘Neglected child’ means any child who:

  • Is not receiving proper or necessary nourishment or medically indicated treatment, including food or care, that is not provided solely on the basis of the present or anticipated mental or physical impairment as determined by a physician, or otherwise is not receiving the proper or necessary support or medical or other remedial care as necessary for a child’s well-being
  • Is not receiving other care necessary for his or her well-being, including adequate food, clothing, and shelter
  • Is subjected to an environment that is injurious insofar as:
    • The child’s environment creates a likelihood of harm to the child’s health, physical well-being, or welfare.
    • The likely harm to the child is the result of a blatant disregard of parent or caregiver responsibilities.
  • Has been provided with interim crisis intervention services under chapter 705, § 405/3-5 and whose parent, guardian, or custodian refuses to permit the child to return home and no other living arrangement agreeable to the parent, guardian, or custodian can be made, and the parent, guardian, or custodian has not made any other appropriate living arrangement for the child
  • Is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance or a metabolite thereof
Sexual Abuse/Exploitation

The term ‘abused child’ includes a child whose parent, immediate family member, person responsible for the child’s welfare, individual residing in the same home as the child, or paramour of the child’s parent commits or allows to be committed any sex offense against the child, as such sex offenses are defined in the Criminal Code of 2012 [chapter 720, § 5/1-1, et seq.] or in the Wrongs to Children Act [chapter 720, § 150/0.01, et seq.], and extending those definitions of sex offenses to include children younger than age 18.

Emotional Abuse

The term ‘abused child’ includes impairment or substantial risk of impairment to the child’s emotional health.

Abandonment

Citation: Comp. Stat. Ch. 325, § 5/3
The term ‘neglected child’ includes a child who is abandoned by his or her parents or other person responsible for the child’s welfare without a proper plan of care.

Standards for Reporting

Citation: Comp. Stat. Ch. 325, § 5/4
A report is required when a mandatory reporter has reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or a neglected child.

Persons Responsible for the Child

A ‘person responsible for the child’s welfare’ includes:

  • The child’s parent, guardian, foster parent, or relative caregiver
  • Any person responsible for the child’s welfare in a public or private residential agency or institution
  • Any person responsible for the child’s welfare within a public or private profit or not-for-profit child care facility
  • Any other person responsible for the child’s welfare at the time of the alleged abuse or neglect, including any person that is the custodian of a child under age 18 who commits or allows to be committed against the child the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services, as provided in chapter 720, § 5/10-9
  • A person who came to know the child through an official capacity or position of trust, including but not limited to health-care professionals, educational personnel, recreational supervisors, members of the clergy, and volunteers or support personnel in any setting where children may be subject to abuse or neglect
Exceptions

A child shall not be considered abused or neglected if

  • The child is a newborn who has been relinquished in accordance with the Abandoned Newborn Infant Protection Act.
  • The presence of a controlled substance in a child or a newborn is the result of medical treatment.
  • The child has been left in the care of an adult relative.
  • The child’s parent relies on spiritual means through prayer for the treatment of disease.
  • The child is not attending school as required by the School Act.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.

‘Domestic violence’ means abuse, as above.

‘Harassment’ means knowing conduct that is not necessary to accomplish a purpose that is reasonable under the circumstances, would cause a reasonable person emotional distress, and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:

  • Creating a disturbance at the petitioner’s place of employment or school
  • Repeatedly telephoning the petitioner’s place of employment, home, or residence
  • Repeatedly following the petitioner about in a public place or places
  • Repeatedly keeping the petitioner under surveillance by remaining present outside his or her home, school, place of employment, vehicle, or other place occupied by the petitioner or by peering in the petitioner’s windows
  • Improperly concealing a minor child from the petitioner, repeatedly threatening to improperly remove a minor child of the petitioner, repeatedly threatening to conceal a minor child from the petitioner, or making a single such threat following an actual or attempted improper removal or concealment, unless respondent was fleeing an incident or pattern of domestic violence
  • Threatening physical force, confinement, or restraint on one or more occasions

‘Interference with personal liberty’ means committing or threatening physical abuse, harassment, intimidation, or willful deprivation so as to compel another to engage in conduct from which he or she has a right to abstain or to refrain from conduct in which he or she has a right to engage.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person commits ‘domestic battery’ if he or she intentionally or knowingly without legal justification by any means:

  • Causes bodily harm to any family or household member
  • Makes physical contact of an insulting or provoking nature with any family or household member

A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated domestic battery. A person who, in committing a domestic battery, strangles another individual commits aggravated domestic battery. For the purposes of this subsection, ‘strangle’ means intentionally impeding the normal breathing or circulation of the blood of an individual by applying pressure on the throat or neck of that individual or by blocking the nose or mouth of that individual.

‘Abuse,’ ‘domestic violence,’ and ‘harassment’ have the same meaning as defined in chapter 750, § 60/103, above.

Persons Included in the Definition

In civil and criminal law: ‘Family or household members’ include:

  • Spouses, former spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage
  • Persons who share or formerly shared a common dwelling
  • Persons who have or allegedly have a child in common
  • Persons who share or allegedly share a blood relationship through a child
  • Persons who have or have had a dating or engagement relationship
  • Persons with disabilities and their personal assistants
  • Caregivers, as defined in chapter 720, § 5/12-21 or § 5/12-4.4a

For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute a dating relationship.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, institution, or agency that, under the reporting laws, participates in good faith in making a report or referral; the investigation of such a report or referral; taking photographs and x-rays; retaining a child in temporary protective custody; or making a disclosure of information concerning reports of child abuse and neglect in compliance with chapter 325, §§ 5/4, 5/4.2, or 5/11.1, as it relates to disclosure by school personnel–and except in cases of willful or wanton misconduct–shall have immunity from any liability, civil or criminal, that otherwise might result by reason of such actions.

For the purpose of any proceedings, civil or criminal, the good faith of any persons required to report or refer, or who are permitted to report, cases of suspected child abuse or neglect shall be presumed. For purposes of this section ‘child abuse and neglect’ includes abuse or neglect of an adult resident as defined in this act.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Any mandated reporter who has reasonable cause to believe a child known to them in their professional or official capacity may be an abused or neglected child shall immediately report or cause a report to be made to the Department of Children and Family Services.

If an electronic and information technology equipment worker discovers any depiction of child pornography while installing, repairing, or otherwise servicing an item of electronic and information technology equipment, that worker or the worker’s employer shall immediately report the discovery to the local law enforcement agency or to the Cyber Tipline at the National Center for Missing and Exploited Children.

All reports by mandated reporters shall be confirmed in writing to the appropriate child protective service unit, which may be on forms supplied by the department, within 48 hours of any initial report.

Written confirmation reports from persons not required to report may be made to the appropriate child protective service unit.

Content of Reports

The initial oral report shall include, if known:

  • The name and address of the child and his or her parents or other persons having custody
  • The child’s age
  • The nature of the child’s condition including any evidence of previous injuries or disabilities
  • Any other information that the person filing the report believes might be helpful in establishing the cause of the abuse or neglect and the identity of the person believed to have caused the abuse or neglect

Initial written reports from the reporting source shall contain the following information to the extent known at the time the report is made:

  • The names and addresses of the child and his or her parents or other persons responsible for his or her welfare
  • The name and address of the school that the child attends or last attended, if the report is written during the summer when school is not in session
  • The name of the school district in which the school is located, if applicable
  • The child’s age, sex, and race
  • The nature and extent of the child’s abuse or neglect, including any evidence of prior injuries, abuse, or neglect of the child or his or her siblings
  • The names of the persons apparently responsible for the abuse or neglect
  • Family composition, including names, ages, sexes, and races of other children in the home
  • The name of the person making the report, his or her occupation, and where he or she can be reached
  • The actions taken by the reporting source, including the taking of photographs and x-rays, placing the child in temporary protective custody, or notifying the medical examiner or coroner
  • Any other information the person making the report believes might be helpful
Reporting Suspicious Deaths

A mandated reporter or any other person who has reasonable cause to believe that a child has died as a result of abuse or neglect shall report to the appropriate medical examiner.

The medical examiner or coroner shall investigate the report and communicate any apparent gross findings orally, immediately upon completion of the gross autopsy, but in all cases within 72 hours, and within 21 days in writing, to the local law enforcement agency, the appropriate State’s attorney, the department, and, if the institution making the report is a hospital, the hospital.

Reporting Substance-Exposed Infants

All mandated reporters may refer to the department any pregnant person who is addicted as defined in the Alcoholism and Other Drug Abuse and Dependency Act.

Agency Receiving the Reports

All reports of suspected child abuse or neglect shall be made immediately by telephone to the central register on the single, state-wide, toll-free telephone number; in person or by telephone through the nearest department office.

Initial Screening Decisions

When a report of child abuse or neglect is received, the department shall make an initial investigation to validate whether there is reasonable cause to believe that child abuse or neglect exists. When investigative staff make a determination that there is reasonable cause to believe that child abuse or neglect exists, a formal investigation shall be made.

Investigative staff will use the following criteria to determine whether there is a good faith indication to believe that abuse or neglect exists:

  • The alleged victim must be younger than age 18.
  • The alleged victim must either have been harmed or be in substantial risk of harm.
  • There must be an abusive or neglectful incident or set of circumstances that caused the alleged harm or substantial risk of harm to the child.
  • For abuse, the alleged perpetrator must be the child’s parent, foster parent, guardian, immediate family member, any individual who resides in the same house as the child, the paramour of the child’s parent, or any person responsible for the child’s welfare at the time of the alleged abuse.
  • For neglect, the alleged perpetrator must be the child’s parent, guardian, foster parent, or any person responsible for the child’s welfare at the time of the alleged neglect.

If any one of the above criteria is not present, a determination will be made that the report does not provide a good faith indication that child abuse or neglect exists, and the investigation will be terminated. If the above criteria are present, investigative staff will begin a formal investigation.

Agency Conducting the Assessment/Investigation

The department shall be the sole agency responsible for receiving and investigating reports of child abuse or neglect, except where investigations by other agencies may be required with respect to reports alleging the death, serious injury, or sexual abuse to a child.

The department may delegate the performance of the investigation to the Department of State Police, a law enforcement agency, and to those private social service agencies that have been designated for this purpose by the department prior to July 1, 1980.

Notwithstanding any other provision of this act, the department shall adopt rules expressly allowing law enforcement personnel to investigate reports of suspected child abuse or neglect concurrently with the department, without regard to whether the department determines a report to be ‘indicated’ or ‘unfounded’ or deems a report to be ‘undetermined.’

Assessment/Investigation Procedures

Beginning January 1, 2010, the department may implement a ‘differential response program’ in which the department, upon receiving a report, shall determine whether to conduct a family assessment or an investigation as appropriate to prevent or provide a remedy for child abuse or neglect.

A ‘family assessment’ is a comprehensive assessment of child safety, risk of subsequent child maltreatment, and family strengths and needs that is applied to a child maltreatment report that does not allege substantial child endangerment. A family assessment does not include a determination as to whether child maltreatment occurred but does determine the need for services to address the safety of family members and the risk of subsequent maltreatment.

An ‘investigation’ includes fact-gathering related to the current safety of a child and the risk of subsequent abuse or neglect that determines whether a report of suspected child abuse or neglect should be indicated or unfounded and whether child protective services are needed.

Under the differential response program, the department:

  • Shall conduct an investigation on reports involving substantial child abuse or neglect
  • Shall begin an immediate investigation if, at any time during a family assessment, it determines that there is reason to believe that substantial child abuse or neglect or a serious threat to the child’s safety exists
  • May conduct a family assessment for reports that do not allege substantial child endangerment
  • May conduct a family assessment on a report that was initially screened and assigned for an investigation

Once it is determined that a family assessment will be implemented, the case shall not be reported to the central register.

Timeframes for Completing Investigations

If it appears that the immediate safety or well-being of a child is endangered, that the family may flee, or the child may disappear, child protection services (CPS) shall commence an investigation immediately, regardless of the time of day or night. In all other cases, an investigation shall begin within 24 hours.

The CPS unit shall determine, within 60 days, whether the report is indicated or unfounded and report it forthwith to the central register. When it is not possible to initiate or complete an investigation within 60 days, the report may be deemed undetermined provided every effort has been made to undertake a complete investigation. The department may extend the period in which such determinations must be made in individual cases for additional periods of up to 30 days each for good cause shown.

Classification of Reports

All reports in the central register shall be classified in one of three categories: ‘indicated,’ ‘unfounded,’ or ‘undetermined,’ as the case may be.

In regulation: Upon completion of a formal investigation of abuse or neglect, investigative staff shall make a final determination as to whether a child was abused or neglected. Allegations may be determined to be indicated, undetermined, or unfounded, as follows:

  • When credible evidence of abuse or neglect has been obtained pertinent to an allegation, the allegation is indicated.
  • When credible evidence of abuse or neglect has not been obtained, the allegation is unfounded.
  • When investigative staff have been unable, for good cause, to gather sufficient facts to support a decision within 60 days of the date the report was received, the allegation shall be considered undetermined.

Parental Drug Use as Child Abuse

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Current Through April 2015

Those who are neglected include any newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in § 102(f) of the Illinois Controlled Substances Act, or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of such substances that are present in the newborn infant as the result of medical treatment administered to the mother or the newborn infant.

Methamphetamine-related child endangerment: It is unlawful to engage in methamphetamine-related child endangerment. A person engages in methamphetamine-related child endangerment when the person knowingly endangers the life and health of a child by exposing or allowing exposure of the child to a methamphetamine-manufacturing environment. A person who violates this paragraph is guilty of a Class 2 felony.

Aggravated methamphetamine-related child endangerment: It is unlawful to engage in aggravated methamphetamine-related child endangerment. A person engages in aggravated methamphetamine-related child endangerment when the person [commits methamphetamine-related child endangerment] and the child experiences death, great bodily harm, disability, or disfigurement as a result of the methamphetamine-related child endangerment. A person who violates this paragraph is guilty of a Class X felony, subject to a term of imprisonment of not less than 6 years and not more than 30 years, and subject to a fine not to exceed $100,000.

All persons required to report may refer to the Department of Human Services any pregnant person in this State who is addicted as defined in the Alcoholism and Other Drug Abuse and Dependency Act.

The Department of Human Services shall notify the local Infant Mortality Reduction Network service provider or department-funded prenatal care provider in the area in which the person resides. The service provider shall prepare a case management plan and assist the pregnant woman in obtaining counseling and treatment from a local substance abuse service provider licensed by the Department of Human Services or a licensed hospital that provides substance abuse treatment services. The local Infant Mortality Reduction Network service provider and department-funded prenatal care provider shall monitor the pregnant woman through the service program.

‘Abused child’ means a child whose parent, immediate family member, any person responsible for the child’s welfare, any individual residing in the same home as the child, or a paramour of the child’s parent causes to be sold, transferred, distributed, or given to such child under age 18 a controlled substance, as defined by law, or in violation of the Methamphetamine Control and Community Protection Act, except for controlled substances that are prescribed in accordance with the Illinois Controlled Substances Act and are dispensed to such child in a manner that substantially complies with the prescription.

‘Neglected child’ means any child who is not receiving the proper or necessary nourishment or medically indicated treatment, including food or care not provided, solely on the basis of the present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians, who otherwise is not receiving the proper or necessary support, medical care, or other remedial care recognized under State law as necessary for a child’s well-being, or other care necessary for his or her well-being, including adequate food, clothing, and shelter; or who is abandoned by his or her parents or other person responsible for the child’s welfare without a proper plan of care; or who is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in the Illinois Controlled Substances Act or a metabolite thereof.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

Immediately upon the filing of a petition alleging that the child is an abused, neglected, or dependent minor, the court shall appoint a guardian ad litem (GAL) for the child.

The court may appoint a GAL for the child when it finds that there may be a conflict of interest between the child and his or her parents or other custodian or that it is otherwise in the child’s best interests to do so.

A GAL shall be appointed to represent the best interests of the child. Unless the GAL is an attorney, he or she shall be represented in the performance of his or her duties by counsel.

If a GAL has been appointed for the minor under § 2-17 of this act, and the GAL is a licensed attorney of this State, or in the event that a court-appointed special advocate (CASA) has been appointed as GAL and counsel has been appointed to represent the CASA, the court may not require the appointment of counsel to represent the minor unless the court finds that the minor’s interests are in conflict with what the GAL determines to be in the best interests of the minor.

The Use of Court-Appointed Special Advocates (CASAs)

The court may appoint a special advocate upon the filing of a petition alleging child abuse or neglect or at any time during the pendency of a proceeding resulting from this petition. Except in counties with a population over 3 million, the CASA may also serve as GAL.

The CASA shall act as a monitor and shall be notified of all administrative case reviews pertaining to the child and work with the parties’ attorneys, the GAL, and others assigned to the child’s case to protect the child’s health, safety, and best interests and ensure the proper delivery of child welfare services. The court may consider, at its discretion, testimony of the CASA pertaining to the well-being of the child.

CASAs shall serve as volunteers without compensation and shall receive training consistent with nationally developed standards. No person convicted of a criminal offense as specified in Section 4.2 of the Child Care Act of 1969 [225 ILCS 10/4.2] and no person identified as a perpetrator of an act of child abuse or neglect as reflected in the Department of Children and Family Services State Central Register shall serve as a CASA.

The court may remove the CASA or the GAL from a case upon finding that the CASA or the GAL has acted in a manner contrary to the child’s best interests or if the court otherwise deems continued service is unwanted or unnecessary.

Qualifications/Training

In counties with a population of 100,000 or more but less than 3 million, each GAL must successfully complete a training program approved by the Department of Children and Family Services. The department shall provide training materials and documents to GALs who are not mandated to attend the training program.

The department shall develop and distribute to all GALs a bibliography containing information, including, but not limited, to the juvenile court process, termination of parental rights, child development, medical aspects of child abuse, and the child’s need for safety and permanence.

Specific Duties

The GAL shall represent the best interests of the minor and shall present recommendations to the court consistent with that duty.

The GAL shall receive copies of any and all classified reports of child abuse and neglect about the child he or she has been appointed to represent.

The GAL shall remain the child’s GAL throughout the entire juvenile trial court proceedings, including permanency hearings and termination of parental rights proceedings, unless there is a substitution entered by order of the court.

The GAL or an agent of the GAL shall have a minimum of one in-person contact with the child and one contact with one of the current foster parents or caregivers, as follows:

  • Prior to the adjudicatory hearing
  • After the adjudicatory hearing but prior to the first permanency hearing
  • Each subsequent year that the child remains in care

For good cause shown, the judge may excuse face-to-face interviews required in this subsection.

How the Representative Is Compensated

The reasonable fees of a GAL shall be fixed by the court and charged to the parents of the child to the extent they are able to pay. If the parents are unable to pay those fees, they shall be paid from the general fund of the county.

All costs associated with the appointment and duties of the CASA shall be paid by the CASA or an organization of CASAs. In no event shall the CASA be liable for any costs of services provided to the child.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Whenever a minor is placed in shelter care with the Department of Children and Family Services or a licensed child welfare agency, the department or agency, as appropriate, shall prepare and file with the court, within 45 days of placement, a case plan that complies with the Federal Adoption Assistance and Child Welfare Act of 1980 and is consistent with the health, safety, and best interests of the minor.

In regulation: The permanency planning process begins when the first contact is made with the child and family. The permanency planning process continues until the health and safety of the child are ensured and department-funded services terminated.

Who May Participate in the Case Planning Process

Based on the information gathered during the assessment process described in § 315.100 and through negotiation during the caseworker’s contacts, visits, and at the initial family meeting, the caseworker and family shall develop a plan of intervention that is based on the family’s strengths and needs and that addresses how the children’s needs for health and safety will be met.

Contents of a Case Plan

Service plans shall contain the following information:

  • The names of the children for whom the department is providing services
  • The health and safety factors that have resulted in placement of the children away from the family home and the problems that are causing continued placement
  • The outcomes that would be considered a resolution to these problems and the strengths the family possesses to achieve those outcomes
  • The reasons the child has been put in his or her current placement, the resources that will be necessary to maintain the placement, and, where a residential placement has been deemed necessary, a description of how and when a plan for moving the child to the least restrictive, most homelike placement can be developed
  • The services to be provided to the parents, to each child while in care, and to the foster parents, if necessary, when the child is in foster care that may best resolve the problems
  • The health care to be provided to the child and the mental health care to be provided to address the child’s serious mental health needs as well as a description of the child’s physical, developmental, educational, or mental disability and any noneducational specialized services the child is receiving or should receive for each disability
  • To the extent available and accessible, the health records of the child
  • A description of the educational program/services the child is receiving or needs to receive
  • To the extent available and accessible, the education records of the child
  • Who will provide the services, how often they will be provided, and an explanation of why these services will meet the needs of the child
  • If the child is placed more than 150 miles from the home of the parents or in a different State, the reasons why the placement is in the best interests of the child
  • If the child is placed in a different State, a requirement that the child be visited no less frequently than every 12 months by a caseworker of the department or of the State in which the child has been placed, and that the caseworker submit a report on the visit to the department
  • If siblings are placed apart from one another, the reasons why they are placed apart and what efforts are being made to find a joint placement for the sibling group
  • The permanency goal for each child and the reason for selecting the goal
  • In the case of a child for whom the permanency plan is adoption or other permanent living arrangement, documentation of the steps the department is taking to find an adoptive family or other permanent living arrangement
  • In the case of a child for whom the permanency plan is independence or for a child age 16 or older, as appropriate, a written description of the programs and services that will help such a child prepare for the transition from foster care to independent living
  • The responsibilities of the family and the child in fulfilling the service plan
  • The responsibilities of the department and service providers to assist the family in fulfilling the service plan
  • When children and families are separated, the parent-child and/or sibling visitation plan developed with the family, including the time, frequency, and length of visits, and who shall be present at the visits
  • The timeframes for achieving the permanency goal, the objectives identified to resolve problems, and the consequences to the child and family if the timeframes are not met
  • A statement that the parents or children may disagree with the service plan and that they may have their disagreement recorded
  • An explanation of how parents or children may request an appeal and fair hearing

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A permanency hearing shall be held:

  • Within 12 months from the date temporary custody was taken, regardless of whether an adjudication or dispositional hearing has been completed within that timeframe
  • Within 30 days of termination of parental rights or a determination that reasonable efforts are not required

Subsequent permanency hearings are to be held every 6 months until permanency is achieved.

In regulation: The first administrative case review shall be conducted within 6 months after the temporary custody hearing. Following the 6-month administrative case review, administrative case reviews shall be conducted every 6 months.

Persons Entitled to Attend Hearings

The following persons must be present at a hearing:

  • The child’s parent, guardian, or legal custodian
  • All parties named in a petition
  • The caseworker, who must testify

In regulation: Administrative case reviews shall include the worker and/or supervisor from the Department of Children and Family Services and/or the substitute care provider agency that has case responsibility for both the children and the family. The hearing shall be open to the participation of:

  • The children’s parents and their representatives
  • Children who are age 12 or older
  • Children younger than age 12 if the caseworker and supervisor determine that the child can benefit from participation in the review process
  • Foster parents or relative caregivers if the information being presented at the review is essential for understanding the needs of and providing care to the child
  • The child’s guardian ad litem or legal representative
Determinations Made at Hearings

The court shall consider:

  • The permanency goal contained in the service plan
  • Appropriateness of services in the plan and whether those services have been provided
  • Whether reasonable efforts have been made by all parties
  • Whether the plan and goal have been achieved

In regulation: Case reviews are conducted to review:

  • Whether the department’s continuing intervention is necessary
  • Whether services, including placement services, are necessary, relevant, coordinated, and appropriate
  • The services needed that are not being provided to the child, family, or foster parents and the reasons why they are not being provided
  • The appropriateness of the child’s educational placement and progress
  • Health information on the child and family
  • Any special physical, psychological, educational, medical, emotional, or other needs of the minor or his or her family
  • For a minor age 16 or older, programs or services that will enable the minor to prepare for independent living
  • Whether the department, service providers, family, any substitute care provider, and the child are complying with the service plan and, if they are not complying, whether changes in the service plan or goals are needed
  • Whether there is progress to resolve the problems of the child and his or her family, and whether the progress is satisfactory and the child can safely return home
  • The appropriateness of the permanency goal and recommend changes in the goal, if needed
Permanency Options

The court may consider the following permanency goals:

  • Return to the parent within a specified time
  • Adoption
  • Guardianship
  • Remaining in substitute care pending independence for minors age 15 and older
  • Remaining in substitute care because a home environment is unsuitable due to developmental disability or mental illness

Notwithstanding any other provision in this section, the court may select the goal of continuing foster care as a permanency goal if:

  • The department has custody and guardianship of the minor.
  • The court has ruled out all other permanency goals based on the child’s best interests.
  • The court has found compelling reasons to place the minor in continuing foster care. Compelling reasons include:
    • The child does not wish to be adopted or to be placed in the guardianship of his or her relative or foster care placement.
    • The child exhibits such an extreme level of need that the removal of the child from his or her placement would be detrimental to the child.
    • The child who is the subject of the permanency hearing has existing close and strong bonds with a sibling, and achievement of another permanency goal would substantially interfere with the child’s sibling relationship, taking into consideration the nature and extent of the relationship, and whether ongoing contact is in the child’s best interests, including long-term emotional interests, as compared with the legal and emotional benefit of permanence.
  • The child has lived with the relative or foster parent for at least 1 year.
  • The relative or foster parent currently caring for the child is willing and capable of providing the child with a stable and permanent environment.

Determining the Best Interests of the Child

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Current Through March 2016

Whenever a ‘best interests’ determination is required, the following factors shall be considered in the context of the child’s age and developmental needs:

  • The physical safety and welfare of the child, including food, shelter, health, and clothing
  • The development of the child’s identity
  • The child’s background and ties, including familial, cultural, and religious
  • The child’s sense of attachments, including:
    • Where the child actually feels love, attachment, and a sense of being valued (as opposed to where adults believe the child should feel love, attachment, and a sense of being valued)
    • The child’s sense of security
    • The child’s sense of familiarity
    • Continuity of affection for the child
    • The least disruptive placement alternative for the child
  • The child’s wishes and long-term goals
  • The child’s community ties, including church, school, and friends
  • The child’s need for permanence, which includes the child’s need for stability and continuity of relationships with parent figures, siblings, and other relatives
  • The uniqueness of every family and child
  • The risks attendant to entering and being in substitute care
  • The preferences of the persons available to care for the child

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Provided that a ground for unfitness under Ch. 750, § 50/1 can be met, it may be appropriate to expedite termination of parental rights:

  • When reasonable efforts are inappropriate, or have been provided and were unsuccessful, and there are aggravating circumstances including, but not limited to, those cases in which:
    • The child or another child of that child’s parent was abandoned, tortured, or chronically abused.
    • The parent is criminally convicted of first- or second-degree murder of any child, attempt or conspiracy to commit first- of second-degree murder of any child, solicitation to commit murder of any child, aggravated assault, or aggravated criminal sexual assault.
  • When the parental rights of a parent with respect to another child have been involuntarily terminated
  • When the parent’s incapacity to care for the child, combined with an extremely poor prognosis for treatment or rehabilitation, justifies expedited termination of parental rights

The grounds of unfitness are any one or more of the following:

  • The parent has abandoned the child.
  • The parent is unable to discharge his or her parental duties due to:
    • Mental illness, mental deficiency, or intellectual disability
    • A conviction and incarceration for a felony
  • The parent has substantially and continuously or repeatedly neglected the child.
  • The parent has been found, two or more times, to have physically abused any child, or to have caused the death of any child by physical abuse.
  • The child was born exposed to controlled substances, and a substance-exposed child was previously born to the same mother.
  • The parent has repeatedly and continuously failed to provide the child with adequate food, clothing, and shelter, although financially able to do so.
  • The parent has failed to maintain regular visitation, contact, or communication with the child for a period of 12 months.
  • A putative father has failed to establish paternity.
  • The child has been in foster care for 15 of the most recent 22 months.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition will be filed when the child has been in foster care for 15 of the most recent 22 months unless the parent can prove by a preponderance of evidence that it is more likely than not that the child will be returned to the parent within 6 months.

A petition to terminate parental rights will be filed when there are grounds unless:

  • The child is being cared for by a relative.
  • The Department of Children and Family Services has documented a compelling reason that filing such petition will not be in the best interests of the child.
  • The court has found that the department has failed to make reasonable efforts to reunify the child and family.
Circumstances Allowing Reinstatement of Parental Rights

A motion to reinstate parental rights may be filed only by the department regarding any child who is presently a ward of the court when all the following conditions are met:

  • The child’s parent consented to the child’s adoption or the parent’s rights were terminated pursuant to a finding of unfitness.
  • Subsequent to that, the child has remained a ward of the court.
  • The child is not currently in a placement likely to achieve permanency.
  • It is in the child’s best interests that parental rights be reinstated.
  • The parent named in the motion wishes parental rights to be reinstated and is currently appropriate to have rights reinstated.
  • More than 3 years have lapsed since the parent’s parental rights have been terminated.
  • The child is age 13 or older, or the younger sibling of a child who is age 13 or older for whom reinstatement of parental rights is being sought, and the younger sibling independently meets the above criteria.
  • If the court has previously denied a motion to reinstate parental rights, there has been a substantial change in circumstances following the denial of the earlier motion.

Any party may file a motion to dismiss the motion with prejudice on the basis that, after parental rights were terminated, the parent has intentionally acted to prevent the child from being adopted or intentionally acted to disrupt the child’s adoption.

The court shall not grant a motion for reinstatement of parental rights unless the court finds that the motion is supported by clear and convincing evidence. The court shall consider the reasons why the child was initially brought to the attention of the court, the history of the child’s case as it relates to the parent seeking reinstatement, and the current circumstances of the parent for whom reinstatement of rights is sought.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A newborn infant may be relinquished under this act. The term ‘newborn infant’ means a child who a licensed physician reasonably believes is 30 days old or younger at the time the child is initially relinquished and who is not an abused or a neglected child.

Who May Relinquish the Infant

The term ‘relinquish’ means to bring a newborn infant to a designated facility and to leave the infant with personnel of the facility, if the person leaving the infant does not express an intent to return for the infant or states that he or she will not return for the infant.

In the case of a mother who gives birth to an infant in a hospital, the mother’s act of leaving that newborn infant at the hospital without expressing an intent to return for the infant or stating that she will not return for the infant is not a relinquishment under this act.

Who May Receive the Infant

A newborn infant may be relinquished to a hospital; police station, including a municipal police station, a county sheriff’s office, a campus police department located on any college or university, or any of the district headquarters of the Illinois State Police; fire station; or emergency medical facility.

Responsibilities of the Safe Haven Provider

If there is suspected child abuse or neglect that is not based solely on the newborn infant’s relinquishment, personnel who are mandated reporters must report the abuse or neglect.

Every hospital must accept and provide all necessary emergency services and care to a relinquished infant, including tests that evaluate whether the infant was abused or neglected.

If the infant is relinquished to a police station, fire station, or emergency medical facility, the personnel must arrange for the transportation of the infant to the nearest hospital as soon as possible. If the parent returns to reclaim the child within 72 hours, he or she must be informed of the name and location of the hospital to which the infant was transported.

Before the relinquishing person leaves the hospital, police station, fire station, or emergency medical facility, the personnel shall:

  • Verbally inform the relinquishing person that by relinquishing the child anonymously, he or she will have to petition the court if he or she desires to prevent the termination of parental rights and regain custody of the child
  • Offer the relinquishing person the information packet described in § 2/35

Within 12 hours after accepting a newborn infant, a hospital must report to the State Central Registry for the purpose of transferring physical custody of the infant from the hospital to either a child-placing agency or the Department of Children and Family Services.

Within 24 hours after receiving a report, the department must request assistance from law enforcement officials to investigate the matter using the National Crime Information Center to ensure that the relinquished newborn infant is not a missing child.

If a relinquished child is not a newborn infant as defined in this act, the hospital and the department must proceed as if the child is an abused or neglected child.

Immunity for the Provider

A hospital, police station, fire station, or emergency medical facility, and any personnel of a hospital, police station, fire station, or emergency medical facility, are immune from criminal or civil liability for acting in good faith in accordance with this act. Nothing in this act limits liability for negligence for care and medical treatment.

Protection for Relinquishing Parent

The act of relinquishing a newborn infant to a hospital, police station, fire station, or emergency medical facility in accordance with this act does not, by itself, constitute a basis for a finding of abuse, neglect, or abandonment of the infant pursuant to the laws of this State nor does it, by itself, constitute a violation of §§ 720 ILCS 5/12C-5 [endangering the life or health of a child] or 720 ILCS 5/12C-10 [child abandonment] of the Criminal Code.

If there is suspected child abuse or neglect that is not based solely on the newborn infant’s relinquishment, the personnel of the hospital, police station, fire station, or emergency medical facility who are mandated reporters must report the abuse or neglect.

Neither a child protective investigation nor a criminal investigation may be initiated solely because a newborn infant is relinquished pursuant to this act.

If there is no evidence of abuse or neglect of a relinquished newborn infant, the relinquishing person has the right to remain anonymous and to leave the hospital, police station, fire station, or emergency medical facility at any time and not be pursued or followed. However, nothing in this act shall be construed as precluding the relinquishing person from providing his or her identity or completing the application forms for the Illinois Adoption Registry and Medical Information Exchange and requesting that the hospital, police station, fire station, or emergency medical facility forward those forms to the Illinois Adoption Registry and Medical information Exchange.

Effect on Parental Rights

There is a presumption that by relinquishing a newborn infant in accordance with this act, the infant’s parent consents to the termination of his or her parental rights with respect to the infant.

Upon notice from the department that a newborn infant has been relinquished, a child-placing agency must accept the infant if the agency has the accommodations to do so. When possible, the child-placing agency must place a relinquished infant in a prospective adoptive home.

The department or child-placing agency must initiate proceedings to terminate the parental rights of the relinquished infant’s known or unknown parents, appoint a guardian for the infant, and obtain consent to the infant’s adoption no sooner than 60 days following the date of the initial relinquishment of the infant. Before filing the petition, the department or child-placing agency must search its Putative Father Registry for the purpose of determining the identity and location of the putative father in order to provide notice.

A parent of a relinquished infant may petition for the return of the infant before the termination of parental rights. The court may hold the proceeding for the termination of parental rights in abeyance up to 60 days. During that period:

  • The court shall order genetic testing to establish maternity or paternity, or both.
  • The department shall conduct a child protective investigation and home study.

Failure to file a petition for the return of the infant before the termination of parental rights bars any future action asserting legal rights to the infant unless the parent’s act of relinquishment involved fraud perpetrated against the parent. No action to void or revoke the termination of parental rights of a parent of a relinquished infant, including an action based on fraud, may be commenced after 12 months after the date that the newborn infant was initially relinquished.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘legal custody’ means the relationship created by a court order in the best interests of the child that imposes on the custodian the responsibility of physical possession of a child and the duty to protect, train, and discipline the child and to provide him or her with food, shelter, education, and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.

The term ‘subsidized guardianship’ means a private guardianship arrangement for children for whom the permanency goals of returning home and adoption have been ruled out and who meet the qualifications for subsidized guardianship as defined by the Department of Children and Family Services in administrative rules.

Purpose of Guardianship

Private guardianship may be selected as the permanency goal when the reunification goal and the adoption goal have been ruled out as permanency goals for the child, but the child resides with a relative or foster home caregiver with whom the child has formed an emotional attachment and who is willing to accept legal responsibility for the child and assume a commitment to a permanent relationship that meets the child’s needs over time.

A Guardian’s Rights and Responsibilities

A person who is granted guardianship of a child has the duty and authority to act in the best interests of the child. Subject to residual parental rights and responsibilities, he or she can make important decisions in matters having a permanent effect on the life and development of the child. The guardian assumes the authority and responsibility for the child’s general welfare, and that may include, but is not necessarily limited to:

  • The authority to consent to marriage; enlistment in the armed forces of the United States; or major medical, psychiatric, and surgical treatment
  • The authority to represent the child in legal actions and to make other decisions of substantial legal significance concerning the minor
  • The authority and duty of reasonable visitation, except to the extent that these have been limited in the best interests of the child by court order
  • The rights and responsibilities of legal custody except where legal custody has been vested in another person or agency
  • The power to consent to the adoption of the child, but only if that authority has been expressly conferred on the guardian by the court
Qualifying the Guardian

Prior to approving a guardianship arrangement for a child, the department shall determine whether guardianship is in the best interests of the child. In making this determination, the department shall consider all relevant factors, including but not limited to:

  • The wishes of the child’s prospective guardian and the guardian’s demonstrated ability to provide care that meets the special needs of the child, if any
  • The wishes of the child who is under age 14 or the consent of the child who is older than age 14
  • The interaction and interrelationship between the child and the prospective guardian
  • The child’s adjustment to the present home, school, and community
  • The child’s need for stability and continuity of relationship with the prospective guardian
  • The mental and physical health of all individuals involved

The department shall ensure that the guardianship arrangement is a safe and suitable placement by means of safety checks, including criminal history and child abuse and neglect registry checks.

Procedures for Establishing Guardianship

If the court determines that the parents of a child who is a ward of the court are unfit or are unable to care for, protect, train or discipline the child or are unwilling to do so, for some reason other than financial circumstances alone, and that the health, safety, and best interests of the child will be jeopardized if he or she remains in the custody of his or her parents, the court may place the child in the custody of a suitable relative or other person as legal custodian or guardian or, with the approval of the Department of Children and Family Services, place the child in the subsidized guardianship of a suitable relative or other person as legal guardian.

The court also shall consider whether, based on health, safety, and the best interests of the child:

  • Appropriate services aimed at family preservation and family reunification have been unsuccessful in rectifying the conditions that have led to a finding of unfitness or inability to care for, protect, train, or discipline the child.
  • No family preservation or family reunification services would be appropriate.

Upon a determination, established by clear and convincing evidence, that the parent is an unfit person, the court shall, when appropriate and in the best interests of the child, enter an order terminating parental rights and appointing a guardian with power to consent to adoption.

Contents of a Guardianship Order

The clerk of the court shall issue a certified copy of the order of court to the legal custodian or guardian of the person, as proof of his or her authority. No other process is necessary as authority for the keeping of the child.

Modification/Revocation of Guardianship

Custody or guardianship granted under this section continues until the court directs otherwise.

Eligibility for Guardianship Subsidy

The subsidized guardianship program provides assistance payments to grandparents and other relatives who have assumed the legal guardianship of children for whom they have cared as a licensed foster parent and for whom they have committed to care on a permanent basis.

For a child to qualify for a federally funded subsidized guardianship, the following criteria must be met:

  • The child must have been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare and the best interests of the child.
  • The child must be eligible for foster care maintenance payments while residing for at least 6 consecutive months in the home of a licensed prospective relative guardian immediately prior to the establishment of the guardianship.
  • The prospective relative guardian must have been a licensed foster parent for that consecutive 6 month period.
  • Being returned home or adopted are not appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the prospective relative guardian and the relative guardian has a strong commitment to caring permanently for the child.
  • With respect to a child who has reached age 14, the child has been consulted and the child has agreed to the guardianship arrangement.

A sibling of an eligible child who is placed with the same relative also qualifies for subsidized guardianship when DCFS and the relative guardian agree that the placement is appropriate.

A child is who is age 14 or older and has lived with a licensed nonrelative foster parent for at least the 6 consecutive months prior to the establishment of a guardianship may be eligible for a State-funded subsidized guardianship.

Links to Agency Policies

Illinois Administrative Code, Title 89, Chapter III, Part 315

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

A relative is any person age 21 or older who is related to the child by blood or adoption, such as a grandparent, sibling, great-grandparent, uncle, aunt, nephew, niece, first cousin, second cousin, godparent, great-aunt, great-uncle, and the spouse of any such relative. A relative may also include a stepparent or adult stepbrother or stepsister.

A relative also includes a person related in any of the above ways to a sibling of a child, even though the person is not related to the child, when the child and his or her sibling are placed together with that person.

For children who have been in the guardianship of the Department of Child and Family Services or have been adopted and are subsequently returned to the temporary custody or guardianship of the department, a relative also may include any person who would have qualified as a relative prior to the adoption, but only if the department determines that it would be in the child’s best interests to consider this person a relative.

Requirements for Placement with Relatives

The relative must be able to adequately provide for the child’s safety and welfare based on the factors set forth in the department’s rules governing relative placements. The placement must be consistent with the child’s best interests.

When the department first assumes custody of a child, the department shall make reasonable efforts to identify and locate a relative who is ready, willing, and able to care for the child.

The department may not place a child with a relative if the results of a check of the Law Enforcement Agencies Data System (LEADS) identifies a prior criminal conviction of the relative or any adult member of the relative’s household for a criminal offense, including:

  • Murder, manslaughter, or reckless homicide
  • Homicide of an unborn child
  • Drug-induced homicide or infliction of bodily harm
  • A sex offense
  • Kidnapping or child abduction
  • Heinous battery or aggravated battery with a firearm
  • Tampering with food, drugs, or cosmetics
  • Home or vehicular invasion
  • Criminal transmission of HIV
  • Criminal abuse or neglect of an elderly or disabled person
  • Child abandonment or endangerment
  • Ritualized abuse of a child

A relative with whom a child is placed may, but is not required to, apply for licensure as a foster family home. As of July 1, 1995, foster care payments shall be made only to licensed foster family homes.

Requirements for Placement of Siblings

In placing a child under this act, the department shall place the child with the child’s sibling or siblings under chapter 20, § 505/7.4, unless the placement is not in each child’s best interests or is otherwise not possible under the department’s rules. If the child is not placed with a sibling under the department’s rules, the department shall consider placements that are likely to develop, preserve, nurture, and support sibling relationships when doing so is in each child’s best interests.

Whenever a child enters care or requires a new placement, the department shall consider the development and preservation of sibling relationships. When the department determines it is not in the best interests of one or more siblings to be placed together, the department shall ensure that the child requiring placement is placed in a home or program where the caregiver is willing and able to be actively involved in supporting the sibling relationship to the extent doing so is in the child’s best interests.

Relatives Who May Adopt

A relative is any person, age 21 or older who is related to the child by blood or adoption, such as a grandparent, sibling, great-grandparent, uncle, aunt, nephew, niece, first cousin, second cousin, godparent, great-aunt, great-uncle, and the spouse of any such relative. A relative may also include a stepparent or adult stepbrother or stepsister.

A relative also includes a person related in any of the above ways to a sibling of a child, even though the person is not related to the child, when the child and his or her sibling are placed together with that person.

For children who have been in the guardianship of the department, have been adopted, and are subsequently returned to the temporary custody or guardianship of the department, a relative may also include any person who would have qualified as a relative prior to the adoption, but only if the department determines that it would be in the child’s best interests to consider this person a relative.

Requirements for Adoption by Relatives

An investigation shall not be made when the petitioner seeks to adopt a related child unless the court, in its discretion, so shall order.

The relative must be able to adequately provide for the child’s safety and welfare based on the factors set forth in the department’s rules governing relative placements. The placement must be consistent with the child’s best interests.

When the department first assumes custody of a child, the department shall make reasonable efforts to identify and locate a relative who is ready, willing, and able to care for the child.

The department may not place a child with a relative if the results of a check of the Law Enforcement Agencies Data System (LEADS) identifies a prior criminal conviction of the relative or any adult member of the relative’s household for a criminal offense, including:

  • Murder, manslaughter, or reckless homicide
  • Homicide of an unborn child
  • Drug-induced homicide or infliction of bodily harm
  • A sex offense
  • Kidnapping or child abduction
  • Heinous battery or aggravated battery with a firearm
  • Tampering with food, drugs, or cosmetics
  • Home or vehicular invasion
  • Criminal transmission of HIV
  • Criminal abuse or neglect of an elderly or disabled person
  • Child abandonment or endangerment
  • Ritualized abuse of a child

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 term ‘family preservation services’ refers to all services to help families, including adoptive and extended families.

Appropriate family preservation services shall be included in the service plan if the Department of Children and Family Services has determined that those services will ensure the child’s health and safety, are in the child’s best interests, and will not place the child in imminent risk of harm. Such plans may include, but are not limited to:

  • Case management services
  • Homemakers, including emergency caretakers, housekeepers, and chore services
  • Counseling, including individual therapy, infant stimulation therapy, family therapy, group therapy, self-help groups, drug and alcohol abuse counseling, vocational counseling, and postadoption services
  • Parent education
  • Day care, including protective day care and day care to meet educational, prevocational, or vocational needs
  • Emergency assistance and advocacy assessments, including coordinated services to secure emergency cash, food, and housing
  • Respite care
  • In-home health care
  • Transportation to obtain any of the above services
  • Medical assistance
When Reasonable Efforts Are Required

The department shall offer family preservation services to help families, including adoptive and extended families. Such services shall be offered:

  • To prevent the placement of children in substitute care when the children can be cared for at home or in the custody of the person responsible for the children’s welfare
  • To reunite children with their families
  • To maintain an adoptive placement

Family preservation services shall only be offered when doing so will not endanger the children’s health or safety. The child and his or her family shall be eligible for services as soon as the report of suspected child abuse or neglect is determined to be indicated. The department may also provide services to any child or family when the report of suspected abuse or neglect is determined to be unfounded if the conditions in the child’s or family’s home are reasonably likely to subject the child or family to future reports of suspected child abuse or neglect. Acceptance of such services shall be voluntary.

When a child is placed in foster care, the department shall ensure and document that reasonable efforts were made to prevent or eliminate the need to remove the child from the child’s home. The department must make reasonable efforts to reunify the family when temporary placement of the child occurs unless otherwise required.

When Reasonable Efforts Are NOT Required

When the department believes that further reunification services would be ineffective, it may request a finding from the court that reasonable efforts are no longer appropriate. The court shall grant this motion with respect to a parent of the minor if the court finds after a hearing that the parent has:

  • Had his or her parental rights to another child involuntarily terminated
  • Been convicted of:
    • First degree or second degree murder of another child of the parent
    • Attempt, conspiracy, or solicitation to commit first degree or second degree murder of another child of the parent
    • Aggravated battery, aggravated battery of a child, or felony domestic battery, any of which has resulted in serious bodily injury to the minor or another child of the parent
    • An offense in any other State substantially similar to any of the above offenses

The department is not required to provide further reunification services after such a finding.

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

A parent, adoptive parent, adjudicated parent whose rights have not been terminated, or legal guardian may designate a standby guardian.

How to Establish a Standby Guardian

A standby guardian may be designated in any writing, including a will. The designation must be witnessed by two or more credible witnesses who are at least age 18, neither of whom is the person designated as the standby guardian.

Upon the filing of a petition, the court may appoint a standby guardian. Children age 14 and older must be notified of the hearing.

The standby guardian must take an oath or affirmation that he or she will faithfully discharge the duties of guardianship and may be required to file a bond once duties are assumed.

How Standby Authority is Activated

The standby guardian shall not have any duties or authority to act until the standby guardian receives knowledge of:

  • The death or consent of the minor’s parent or parents or guardian
  • The inability of the minor’s parent or parents or guardian to make and carry out day-to-day child care decisions concerning the minor

When the triggering event has occurred, the standby guardian has 60 days to file confirming documents and petition the court for guardianship.

Involvement of the Noncustodial Parent

Citation: Comp. Stat. Ch. 755, § 5/11-5.3
The designation of a standby guardian does not affect the rights of the other parent of the child.

The court lacks jurisdiction to proceed on a petition to appoint a guardian if the minor has a living, adoptive, or adjudicated parent whose parental rights have not been terminated, and whose whereabouts are known, and who is willing to assume day-to-day care of the child, unless the parent consents or fails to object after receiving notice of the petition.

Authority Relationship of the Parent and the Standby

Once the guardianship has been activated, the standby guardian assumes all duties as guardian of the minor.

Withdrawing Guardianship

The authority of the standby guardian may be limited or terminated by a court of competent jurisdiction.

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

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11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

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8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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