How to write a Motion To Dismiss for DCS / CPS Juvenile Court In Indiana

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

Indiana

 

Indiana Child Welfare Policy Manual

Links to State and Tribal Child Welfare Law and Policy

To better understand this issue and to view it across States, download the PDF (223 KB) of this publication.

Current Through March 2015

Statutes

http://www.in.gov/legislative/ic/code/

  • Adoption: Title 31, Article 19
  • Child Protection: Title 31, Article 33
  • Child Welfare: Title 31, Articles 28, 34, 35
  • Guardianship: Title 29, Article 3, Chapters 1, 8; Title 31, Article 34, Chapter 21
  • Youth Services: Title 31, Article 28, Chapter 5.8; Title 31, Article 34, Chapter 21
Regulation/Policy

http://www.in.gov/legislative/iac/iac_title?iact=465

See Article 2, Child Welfare Services:

  • For Assisted Guardianship Program, see Rule 8
  • For Independent Living Services and older foster youth care, see Rules 14 and 15

http://www.in.gov/dcs/2354.htm

Other Resources

Indiana Rules of Court

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In civil law: This section applies if a court finds that a noncustodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the noncustodial parent’s child.

Consequences

When a noncustodial parent has been convicted of domestic violence that was witnessed by the noncustodial parent’s child, his or her parenting time with the child must be supervised for at least 1 year and no more than 2 years immediately following the crime involving domestic or family violence or until the child becomes emancipated, whichever occurs first.

As a condition of granting the noncustodial parent unsupervised parenting time, the court may require the noncustodial parent to complete a batterer’s intervention program certified by the Indiana Coalition Against Domestic Violence.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

A child is a ‘child in need of services’ if, before the child becomes age 18, the child’s physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian.

Evidence that the illegal manufacture of a drug or controlled substance is occurring on property where a child resides creates a rebuttable presumption that the child’s physical or mental health is seriously endangered.

Neglect

A child is a ‘child in need of services’ if, before the child becomes age 18:

  • The child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision.
  • The child is born with fetal alcohol syndrome or any amount, including a trace amount, of a controlled substance or a legend drug in the child’s body.
  • The child has an injury, abnormal physical or psychological development, or is at a substantial risk of a life-threatening condition that arises or is substantially aggravated because the child’s mother used alcohol, a controlled substance, or a legend drug during pregnancy.

The term ‘child in need of services’ includes a child with a disability who is deprived of nutrition that is necessary to sustain life, or is deprived of medical or surgical intervention that is necessary to remedy or ameliorate a life-threatening medical condition if the nutritional, medical, or surgical intervention is generally provided to similarly situated children with or without disabilities.

Sexual Abuse/Exploitation

A child is a ‘child in need of services’ if, before the child becomes age 18, the child is the victim of an offense, as defined in the criminal statutes, pertaining to:

  • Rape
  • Criminal deviate conduct (before its repeal)
  • Child molesting
  • Child exploitation or possession of child pornography
  • Child seduction
  • Sexual misconduct with a minor
  • Indecent exposure
  • Prostitution
  • Incest

A child is a ‘child in need of services’ if, before the child becomes age 18, the child’s parent, guardian, or custodian allows the child:

  • To participate in an obscene performance
  • To commit a sex offense prohibited by criminal statute

A child is a child in need of services if, before the child becomes age 18, the child is the victim of:

  • Human or sexual trafficking (as defined in § 31-9-2-133.1)
  • A human or sexual trafficking offense under the law of another jurisdiction, including Federal law, that is substantially equivalent

A child is considered a victim of human or sexual trafficking regardless of whether the child consented to the conduct described above.

The term ‘victim of human or sexual trafficking’ refers to a child who is recruited, harbored, transported, or engaged in:

  • Forced labor
  • Involuntary servitude
  • Prostitution
  • Child exploitation, as defined in § 35-42-4-4(b)
  • Marriage, unless authorized by a court under § 31-11-1-6
  • Trafficking for the purpose of prostitution or participation in sexual conduct, as defined in § 35-42-4-4(a)(4)
Emotional Abuse

A child is a ‘child in need of services’ if the child’s mental health is seriously endangered by an act or omission of the child’s parent, guardian, or custodian.

Abandonment

Citation: Ann. Code § 31-9-2-0.5
‘Abandoned infant’ means:

  • A child who is younger than 12 months old and whose parent, guardian, or custodian has knowingly or intentionally left the child in an environment that endangers the child’s life or health or in a hospital or medical facility and has no reasonable plan to assume the care, custody, and control of the child
  • A child who is or appears to be no more than 30 days old and whose parent has knowingly and intentionally left the child with an emergency medical services provider and did not express an intent to return for the child
Standards for Reporting

Citation: Ann. Code § 31-33-5-1
A report is required when an individual has reason to believe that a child is a victim of child abuse or neglect.

Persons Responsible for the Child

Responsible persons include the child’s parent, guardian, or custodian.

Exceptions

A child is not a ‘child in need of services’ if:

  • The presence of a controlled substance was a result of a valid medical prescription.
  • A parent fails to provide specific medical treatment for a child because of legitimate and genuine religious beliefs. This presumption does not do any of the following:
    • Prevent a court from ordering medical services when the health of the child requires it
    • Apply to situations in which the child’s life or health is in serious danger

This chapter does not limit:

  • The right of the parent to use reasonable corporal punishment to discipline the child
  • The lawful practice or teaching of religious beliefs

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Crime involving domestic or family violence’ means a crime that occurs when a family or household member commits, attempts to commit, or conspires to commit any of the following against another family or household member:

  • A homicide offense
  • A battery offense
  • Kidnapping or confinement
  • A sex offense
  • Robbery
  • Arson or mischief
  • Burglary or trespass
  • Disorderly conduct
  • Intimidation or harassment
  • Voyeurism
  • Stalking
  • An offense against the family under §§ 35-46-1-2 through 35-46-1-8, 35-46-1-12, or 35-46-1-15.1
  • Human and sexual trafficking crimes
  • A crime involving animal cruelty and a family or household member

‘Domestic or family violence’ means, except for an act of self-defense, the occurrence of one or more of the following acts committed by a family or household member:

  • Attempting to cause, threatening to cause, or causing physical harm to another family or household member without legal justification
  • Placing a family or household member in fear of physical harm without legal justification
  • Causing a family or household member to involuntarily engage in sexual activity by force, threat of force, or duress
  • Beating, torturing, mutilating, or killing an animal without justification with the intent to threaten, intimidate, coerce, harass, or terrorize a family or household member
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Crime of domestic violence’ means an offense or the attempt to commit an offense that:

  • Includes the use of physical force or threatened use of a deadly weapon
  • Is committed against a:
    • Current or former spouse, parent, or guardian of the defendant
    • Person with whom the defendant has a child in common
    • Person who was cohabiting with or had cohabited with the defendant as a spouse, parent, or guardian
    • Person who was or had been similarly situated to a spouse, parent, or guardian of the defendant
Persons Included in the Definition

In civil law: An individual is a ‘family or household member’ of another person if the individual:

  • Is a current or former spouse of the other person
  • Is dating or has dated the other person
  • Is engaged or was engaged in a sexual relationship with the other person
  • Is related by blood or adoption to the other person
  • Is or was related by marriage to the other person
  • Has or previously had an established legal relationship:
    • As a guardian of the other person
    • As a ward of the other person
    • As a custodian of the other person
    • As a foster parent of the other person
    • In a capacity with respect to the other person similar to those listed above
  • Has a child in common with the other person

An individual is a ‘family or household member’ of both persons listed above if the individual is a minor child of one of the persons.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has reason to believe that a child is a victim of abuse or neglect shall immediately make an oral report to the Department of Child Services or a local law enforcement agency.

Content of Reports

The department shall make a written report of a child who may be a victim of child abuse or neglect no later than 48 hours after receipt of the oral report.

Written reports must be made on forms supplied by the administrator. The written reports must include, if known, the following information:

  • The names and addresses of the child and the child’s parents, guardian, custodian, or other person responsible for the child’s care
  • The child’s age and sex
  • The nature and apparent extent of the child’s injuries, abuse, or neglect, including any evidence of prior injuries of the child or abuse or neglect of the child or the child’s siblings
  • The name of the person allegedly responsible for causing the injury, abuse, or neglect
  • The source of the report
  • The name of the person making the report and where the person can be reached
  • The actions taken by the reporting source, including the following:
    • Taking of photographs and x-rays
    • Removing or keeping of the child
    • Notifying the coroner
  • The written documentation required by § 31-34-2-3 if a child was taken into custody without a court order
  • Any other information that the director requires by rule or the person making the report believes might be helpful
Reporting Suspicious Deaths

A copy of the written report of the local child protection service shall immediately be made available to the coroner for the coroner’s consideration in a case involving death. Upon receiving a written report, the coroner shall accept the report for investigation and report the findings to:

  • The appropriate law enforcement agency
  • The prosecuting attorney
  • The department
  • The hospital, if the institution making the report is a hospital
Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The department shall arrange for receipt, on a 24-hour, 7-day per week basis, of all reports of suspected child abuse or neglect.

Initial Screening Decisions

This issue is not addressed in the statutes reviewed.

Agency Conducting the Assessment/Investigation

Upon the receipt of a report of known or suspected child abuse, the department shall contact the law enforcement agency in the appropriate jurisdiction.

The law enforcement agency, with the department, shall conduct an immediate onsite investigation of the report if the law enforcement agency has reason to believe that an offense has been committed. The law enforcement agency shall investigate the alleged child abuse or neglect in the same manner that the law enforcement agency conducts any other criminal investigation.

The department shall promptly make a thorough assessment upon either the oral or written report. The primary purpose of the assessment is the protection of the child.

If a report alleges abuse or neglect and involves a child care ministry that is exempt from licensure, the department and the appropriate law enforcement agency shall jointly conduct an investigation. The investigation shall be conducted under the requirements of §§ 31-33-8-1 and 31-33-8-2(b).

Assessment/Investigation Procedures

The department’s assessment, to the extent that is reasonably possible, must include the following:

  • The nature, extent, and cause of the known or suspected child abuse or neglect
  • The identity of the person allegedly responsible for the child abuse or neglect
  • The names and conditions of other children in the home
  • An evaluation of the parent, guardian, custodian, or person responsible for the care of the child
  • An evaluation of the home environment and the relationship of the child to the parent, guardian, custodian, or other persons responsible for the child’s care
  • All other data considered pertinent

The assessment may include the following:

  • A visit to the child’s home
  • An interview with the child
  • A physical, psychological, or psychiatric examination of any child in the home
Timeframes for Completing Investigations

The department shall initiate an immediate and appropriately thorough child protection investigation of every report of known or suspected child abuse or neglect the department receives. Investigation timeframes are as follows:

  • If the report alleges a child may be a victim of child abuse, the investigation shall be initiated immediately, but no later than 24 hours after receipt of the report.
  • If reports of child neglect are received, the investigation shall be initiated within a reasonably prompt time, but no later than 5 days, with the primary consideration being the well-being of the child who is the subject of the report.
  • If the immediate safety or well-being of a child appears to be endangered or the facts otherwise warrant, the investigation shall be initiated regardless of the time of day.
  • If the department has reason to believe that the child is in imminent danger of serious bodily harm, the department shall initiate an immediate, onsite investigation within 1 hour.
  • If the report alleges that a child lives with a parent, guardian, or custodian who is married to or lives with a person who has been convicted of neglect of a dependent or a battery offense or is required to register as a sex or violent offender, the department shall initiate an assessment within a reasonably prompt time, but no later than 5 days after the receipt of the report.
Classification of Reports

Upon completion of an investigation, the department shall classify reports as substantiated or unsubstantiated.

Parental Drug Use as Child Abuse

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Current Through April 2015

A person who recklessly, knowingly, or intentionally takes a person younger than age 18 or an endangered adult (as defined in § 12-10-3-2) into a building, structure, vehicle, or other place that is being used by any person to unlawfully possess drugs or controlled substances or unlawfully manufacture, keep, offer for sale, sell, deliver, or finance the delivery of drugs or controlled substances, commits a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section.

A child is a ‘child in need of services’ if before the child becomes age 18:

  • The child’s physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian.
  • The child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court.

Evidence that the illegal manufacture of a drug or controlled substance is occurring on property where a child resides creates a rebuttable presumption that the child’s physical or mental health is seriously endangered.

Except as provided in statute, a child is a ‘child in need of services’ if:

  • The child is born with fetal alcohol syndrome or any amount, including a trace amount, of a controlled substance or a legend drug in the child’s body.
  • The child has an injury, has abnormal physical or psychological development, or is at a substantial risk of a life-threatening condition that arises or is substantially aggravated because the child’s mother used alcohol, a controlled substance, or a legend drug during pregnancy.
  • The child needs care, treatment, or rehabilitation that the child is not receiving or is unlikely to be provided or accepted without the coercive intervention of the court.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The juvenile court may appoint a guardian ad litem (GAL) or court-appointed special advocate (CASA), or both, for the child at any time.

The juvenile court may appoint an early intervention advocate for a child who is participating in a preventative program for at-risk children that has been established by the court. An ‘early intervention advocate’ is a volunteer or staff member of a preventative program who is appointed by the court as an officer of the court to assist, represent, and protect the interests of at-risk children.

A court may not appoint a party to the proceedings, an employee of a party to the proceedings, or a representative of a party to the proceedings as the GAL or CASA for a child involved in the proceedings.

A GAL or CASA need not be an attorney, but the attorney representing the child may be appointed the child’s GAL or CASA.

The GAL or CASA may be represented by an attorney.

Before complying with the other requirements of this chapter, the juvenile court shall first determine whether the following conditions make it appropriate to appoint a GAL or CASA, or both, for the child:

  • The child is alleged to be a child in need of services due to abuse, neglect, or abandonment.
  • The parent, guardian, or custodian of a child denies the allegations of a child in need of services petition.
The Use of Court-Appointed Special Advocates (CASAs)

A CASA is a community volunteer who:

  • Has completed a training program approved by the court
  • Has been appointed by a court to represent and protect the best interests of a child
  • May research, examine, advocate, facilitate, and monitor a child’s situation

A CASA is a community volunteer who has completed a training program approved by the court that includes training in the identification and treatment of child abuse and neglect and early childhood, child, and adolescent development.

Qualifications/Training

A GAL is an attorney, a volunteer, or an employee of a county program designated under § 33-24-6-4 who has completed training appropriate for the person’s role, including training in the identification and treatment of child abuse and neglect and early childhood, child, and adolescent development, as required by 42 U.S.C. 5106a(b)(2)(B)(xiii).

A GAL who is not an attorney must complete the same court-approved training program that is required for a CASA.

Specific Duties

A GAL is an attorney, a volunteer, or an employee of a county program who is appointed by a court to:

  • Represent and protect the best interests of a child
  • Provide the child with services requested by the court, including researching, examining, advocating, facilitating, and monitoring the child’s situation

A GAL or CASA shall represent and protect the best interests of the child. The GAL or CASA, or both, shall be considered officers of the court for the purpose of representing the child’s interests.

A GAL or CASA serves until the juvenile court enters an order for discharge.

How the Representative Is Compensated

A juvenile court may order the parent or guardian of the estate of any child for whom a GAL or CASA is appointed to pay to the Probation Department a user fee of not more than $100 for deposit in:

  • The GAL fund if a GAL has been appointed
  • The CASA fund if a CASA has been appointed

The fiscal body of the county shall appropriate money from the GAL fund or the CASA fund to the juvenile courts to provide GAL or CASA services and the costs of representation for the GALs or CASAs.

Money remaining in the GAL fund or CASA fund at the end of the county’s fiscal year does not revert to any other fund but continues in the GAL fund or CASA fund.

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Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

In accordance with Federal law, a case plan is required for each child in need of services who is under the supervision of the Department of Child Services as a result of an out-of-home placement or the issuance of a dispositional decree. The department shall complete a child’s case plan no later than 60 days after the date of the child’s first placement or the date of a dispositional decree, whichever comes first.

Who May Participate in the Case Planning Process

The department, after negotiating with the child’s parent, guardian, or custodian, shall complete the child’s case plan.

Contents of a Case Plan

The case plan must include a description and discussion of the following:

  • A permanent plan for the child and an estimated date for achieving the goal of the plan
  • The appropriate placement for the child based on the child’s special needs and best interests
  • The least restrictive familylike setting that is close to the home of the child’s parent, custodian, or guardian if out-of-home placement is recommended
  • Family services recommended for the child, parent, guardian, or custodian
  • Efforts already made to provide family services to the child, parent, guardian, or custodian
  • Efforts that will be made to provide family services that are ordered by the court
  • A plan for ensuring the educational stability of the child while in foster care that includes assurances that:
    • The placement of the child in foster care considers the appropriateness of the current educational setting of the child and the proximity to the school where the child is presently enrolled.
    • The department has coordinated with local educational agencies to ensure the child remains in the school where the child is enrolled at the time of removal unless immediate, appropriate enrollment of the child is needed in a different school, including arrangements for the transfer of the child’s school records to the new school, if remaining in the same school is not in the best interests of the child.

If an out-of-home placement is appropriate, the local office or department shall consider whether the child should be placed with the child’s suitable and willing blood or adoptive relative caregiver, including a grandparent, aunt, uncle, or adult sibling, before considering other out-of-home placements for the child.

Concurrent Planning for Permanency for Children

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Current Through November 2012

This issue is not addressed in the statutes reviewed.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The case of each child in need of services under the supervision of the Department of Child Services must be reviewed at least once every 6 months, or more often, if ordered by the court. The first of these periodic case reviews must occur at least 6 months after the date of the child’s removal from the child’s home, or at least 6 months after the date of the dispositional decree, whichever comes first.

Each periodic case review must be conducted by the juvenile court in a formal court hearing. The court may perform a case review any time after a progress report has been filed.

The court shall hold a permanency hearing:

  • No later than 30 days after a court finds that reasonable efforts to reunify or preserve a child’s family are not required
  • Every 12 months after the date of the original dispositional decree or the date that the child in need of services was removed from the child’s parent, guardian, or custodian, whichever comes first
  • More often if ordered by the juvenile court
Persons Entitled to Attend Hearings

At least 7 days prior to a hearing, the department shall provide notice to each of the following:

  • The child’s parent, guardian, or custodian
  • An attorney who has entered an appearance on behalf of the child’s parent, guardian, or custodian
  • A prospective adoptive parent
  • The child’s foster parent
  • Any other person whom the department knows is currently providing care for the child
  • Any other suitable relative or person whom the department knows has had a significant or caregiving relationship to the child

The court shall provide to a person described above an opportunity to be heard and to make recommendations to the court. The right to be heard and to make recommendations includes:

  • The right to submit a written statement to the court that, if served upon all parties to the child in need of services proceeding and the persons described above, may be made a part of the court record
  • The right to present oral testimony to the court and cross-examine any of the witnesses at the hearing
Determinations Made at Hearings

At the review hearing the court shall determine:

  • Whether the child’s case plan, services, and placement meet the child’s special needs and best interests
  • Whether the department has made reasonable efforts to provide family services
  • A projected date for the child’s return home, adoption, emancipation, or placement with a legal guardian

At the permanency hearing the court shall:

  • Consider the question of continued jurisdiction and whether the dispositional decree should be modified
  • Consider the recommendations of persons listed above before approving a permanency plan
  • Consult with the child in an age-appropriate manner regarding the proposed permanency plan
  • Consider and approve a permanency plan for the child
  • Determine whether an existing permanency plan must be modified

If the child is at least age 16 and the proposed permanency plan provides for the transition of the child from foster care to independent living, the court shall:

  • Require the department to provide notice of the permanency hearing to the child
  • Provide to the child an opportunity to be heard and to make recommendations to the court
  • Require the department to document its unsuccessful efforts to return the child home or secure a placement for the child with a fit and willing relative, legal guardian, or adoptive parent, including efforts to find biological or adoptive family members for the child
  • Ask the child about his or her desired permanency outcome and document the child’s response
  • Determine why another planned permanent living arrangement is the best permanency plan for the child
  • Require the department to document the steps the department is taking to ensure that the child’s foster family home is following the reasonable and prudent parent standard in providing the child with regular, ongoing opportunities to engage in developmentally appropriate activities
Permanency Options

A permanency plan includes the intended permanent or long-term arrangements for care and custody of the child that may include any of the following arrangements that the department or the court considers most appropriate and consistent with the best interests of the child:

  • Return to or continuation of existing custodial care within the home of the child’s parent, guardian, or custodian or placement of the child with the child’s noncustodial parent
  • Initiation of a proceeding for termination of the parent-child relationship
  • Placement of the child for adoption
  • Placement of the child with a responsible person, including an adult sibling, a grandparent, an aunt, an uncle, a custodial parent of a sibling of the child, or another relative who is able and willing to act as the child’s permanent custodian and carry out the responsibilities required by the permanency plan
  • Appointment of a legal guardian
  • A supervised Independent Living arrangement or foster care for the child with a permanency plan of another planned, permanent living arrangement

A child younger than age 16 may not have another planned, permanent living arrangement as the child’s permanency plan.

Determining the Best Interests of the Child

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Current Through March 2016

If consistent with the safety of the community and the best interests of the child, the juvenile court shall enter a dispositional decree that:

  • Is in the least restrictive (most family-like) and most appropriate setting available
  • Is close to the parents’ home, consistent with the best interests and special needs of the child
  • Interferes least with family autonomy
  • Is least disruptive of family life
  • Imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian
  • Provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

A court may find that reasonable efforts to reunify a child with his or her parent are not required when:

  • The parent has been convicted of any of the following offenses:
    • A sex offense, as described in § 31-35-3-4(1)(D) through (1)(J), against the child or a parent of the child
    • Murder or voluntary manslaughter of the child or a parent of the child
    • Aiding, inducing, causing another person, attempting, or conspiring with another person to commit murder or manslaughter
    • Felony battery, aggravated battery, criminal recklessness, or neglect of a dependent against a child
  • The parental rights of a parent with respect to a birth or adoptive sibling of the child have been involuntarily terminated.
  • The child is an abandoned infant.

A petition for termination of parental rights shall be filed if a court has made a finding under § 31-34-21-5.6 that reasonable efforts for family preservation or reunification with respect to a child in need of services are not required.

A petition also may be filed when a child in need of services or a delinquent child:

  • Has been placed in a foster family home, child-caring institution, licensed group home, or the home of a person related to the child
  • Has been removed from a parent and has been under the supervision of the Department of Child Services or county Probation Department for not less than 15 of the most recent 22 months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition to terminate parental rights may be dismissed if:

  • The current case plan has documented a compelling reason that termination of the parent-child relationship is not in the best interests of the child. A compelling reason may include the fact that the child is being cared for by a custodian who is a parent, stepparent, grandparent, or responsible adult who is the child’s sibling, aunt, uncle, or another related person who is caring for the child as a legal guardian.
  • The Department of Child Services has not provided family services to the child, parent, or family of the child in accordance with the case plan, and the period for completion of the program of family services has not expired.
  • The department has not provided family services to the child, parent, or family of the child in accordance with the case plan, and the services that the department has not provided are substantial and material in relation to implementation of a plan to permit safe return of the child to the child’s home.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

The relinquished child may not be more than 30 days old.

Who May Relinquish the Infant

The child may be relinquished by his or her parent or any person designated by the parent.

Who May Receive the Infant

The child may be left with an emergency medical services provider.

Responsibilities of the Safe Haven Provider

An emergency medical services provider shall, without a court order, take custody of a child who is, or who appears to be, not more than 45 days old if:

  • The child is voluntarily left with the provider by the child’s parent.
  • The parent does not express an intent to return for the child.

An emergency medical services provider who takes custody of a child under this section shall perform any act necessary to protect the child’s physical health or safety.

Immediately after an emergency medical services provider takes custody of a child, the provider shall notify the Department of Child Services that the provider has taken custody of the child. Not later than 48 hours after the department has taken custody of the child, it shall contact the Indiana Clearinghouse for Information on Missing Children and Missing Endangered Adults to determine if the child has been reported missing.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent

A person who voluntarily leaves a child with an emergency services provider is not required to disclose his or her name or the parent’s name.

If the accused person left a dependent child, who was not more than 30 days old at the time the alleged act occurred, with an emergency medical provider who took custody of the child, it is a defense to a prosecution for abandonment or neglect of a dependent when:

  • The prosecution is based solely on the alleged act of leaving the child with the emergency medical services provider.
  • The alleged act did not result in bodily injury or serious bodily injury to the child.
Effect on Parental Rights

The Department of Child Services shall assume the care, control, and custody of the child immediately after receiving notice from the emergency services provider.

A child for whom the Department of Child Services assumes care, control, and custody shall be treated as a child taken into custody without a court order, except that efforts to locate the child’s parents or reunify the child’s family are not necessary if, after receiving a written report and recommendation from the guardian ad litem or court-appointed special advocate, the court finds that reasonable efforts to locate the child’s parents or reunify the child’s family would not be in the best interests of the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means a person who is a fiduciary and is appointed by a court to be a guardian or conservator responsible as the court may direct for the person or the property of a minor. The term includes a temporary guardian, a limited guardian, and a successor guardian, but excludes one who is only a guardian ad litem. The terms ‘guardian’ and ‘conservator’ are interchangeable.

Purpose of Guardianship

The Department of Child Services will offer guardianship as a permanency option if it is in the best interests of the child and if other permanency goals (e.g., reunification, adoption, another planned permanent living arrangement, or placement with a fit and willing relative) are not feasible.

A Guardian’s Rights and Responsibilities

The legal guardian appointed under this section is a caregiver in a judicially created relationship between the child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of the following parental rights with respect to the child:

  • Care, custody, and control of the child
  • Decision-making concerning the child’s upbringing

The guardian of a child may exercise all of the powers required to perform the guardian’s responsibilities, including the following:

  • The power to take custody of the child and establish the child’s place of abode within or without Indiana
  • The power to consent to medical or other professional care and treatment for the child’s health and welfare
  • The power to consent to the marriage or adoption of the child
Qualifying the Guardian

The juvenile court may not approve a placement with a legal guardian if a person who is currently residing with the proposed legal guardian has committed an act resulting in a substantiated report of child abuse or neglect, has a juvenile adjudication for an act that would be a felony listed in § 31-27-4-13 if committed by an adult, or has a conviction for a felony listed in that section.

Before requesting juvenile court approval of a permanency plan, the department shall conduct a criminal history check to determine if a person living in the home proposed for the child’s placement has committed an act resulting in a substantiated report of child abuse or neglect or has committed a felony that would result in the person’s disqualification.

In regulation: The guardian must meet each of the following criteria, as shown by a home study and an evaluation of the guardian:

  • Have the ability to provide for the child’s physical, mental, emotional, educational, and psychological needs, upon termination of supervision of the child by the department, except for provision of assistance
  • Have the ability, willingness, and motivation to access and obtain appropriate services outside the home that are necessary or appropriate for the health, education, development, and well-being of the child and that will assist the child in becoming a self-supporting adult to the maximum extent feasible
  • Have established a nurturing, stable relationship with the child in which the child indicates a desire to continue a family relationship and residence with the guardian in the guardian’s household
  • Have demonstrated the ability to determine and regulate an appropriate level of relationship and ongoing contacts with any parent or other close relative of the child, consistent with the safety and best interests of the child, and in conformance with any plan of visitation ordered or approved by the court
Procedures for Establishing Guardianship

Any person may file a petition for the appointment of a person to serve as guardian for a child under this chapter. After the filing of a petition, the court shall set a date for a hearing on the issues raised by the petition. A court shall notify the department of a hearing regarding the guardianship of a child under this section, if a child in need of services petition has been filed regarding the child. The department may participate in a hearing regarding the guardianship of a child described in this subsection.

If the subject of the petition is a child, notice of the petition and the hearing on the petition shall be given to the following persons whose whereabouts can be determined upon reasonable inquiry:

  • The child if he or she is at least age 14, unless the child has signed the petition
  • Any living parent of the child, unless parental rights have been terminated by a court order
  • Any person alleged to have had the principal care and custody of the child during the 60 days preceding the filing of the petition
  • Any other person that the court directs
Contents of a Guardianship Order

The court may include in its order creating a guardianship of a child the following:

  • A requirement that the child must reside with the guardian until the guardianship is terminated or modified
  • Any terms and conditions that a parent must meet in order to seek modification or termination of the guardianship
Modification/Revocation of Guardianship

The court may modify or terminate the guardianship only if the parent complies with the terms and conditions and proves the parent’s current fitness to assume all parental obligations by a preponderance of the evidence.

If a petition is filed for modification, resignation, removal of the guardian, or termination of the guardianship before the parent complies with the court-ordered terms and conditions described above, and the child was the subject of a petition alleging the child to be a child in need of services, the court shall refer the petition to the Department of Child Services for the department to determine the placement of the child in accordance with the best interests of the child.

A court shall notify the department:

  • If the court appoints a guardian for a child who was the subject of a petition alleging the child to be a child in need of services, and if a petition to modify or terminate the guardianship of the child or a petition regarding the death, resignation, or removal of the guardian is filed
  • Of any hearings related to the petitions

If a child was the subject of a petition alleging the child to be a child in need of services, the court shall do the following at a hearing regarding a petition filed under this section:

  • Consider the position of the department
  • If requested by the department, allow the department to present evidence regarding:
    • Whether the guardianship should be modified or terminated
    • The fitness of the parent to provide for the care and supervision of the child at the time of the hearing
    • The appropriate care and placement of the child
    • The best interests of the child
Eligibility for Guardianship Subsidy

A child who meets all the following criteria shall be eligible for assistance:

  • The child is at least age 13, a member of a sibling group in which at least one of whom is at least age 13, seriously disabled, or approved for legal guardianship as a permanency plan by order of a court.
  • The child must be residing in the household of an adult relative caregiver.
  • The gross family income attributable to the child must be less than 250 percent of the Federal poverty level.
  • The child must have been adjudicated as a child in need of services by a juvenile court.
  • The child must have been removed from the child’s home and placed in another home or shelter care facility, under supervision of a county office, pursuant to a dispositional decree.
  • The child must be residing with a guardian who meets the eligibility requirements specified below.
  • The child must have resided with the guardian in the guardian’s home for a continuous period of at least 6 months.
  • The permanency plan for the child is appointment of a legal guardian for the child.

A guardian who meets all the following criteria shall be eligible to receive assistance on behalf of a child who is eligible for assistance:

  • The guardian must be a relative of the child.
  • The guardian must reside in a home that meets all requirements for licensing as a foster family home.
  • The eligible child must currently reside with the guardian in his or her home.
  • The child must have resided in the guardian’s home for a continuous period of at least 6 months.
  • The guardian must be primarily responsible for providing for appropriate care, support, maintenance, education, and welfare of the child.
Links to Agency Policies

Indiana Department of Child Services, Child Welfare Manual, Chapter 14, § 6, Guardianship (PDF – 134 KB)

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Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Within 30 days after the removal of the child from the parents, the Department of Child Services shall exercise due diligence to identify and provide notice of the removal to:

  • All adult relatives of the child, including relatives suggested by either parent as required under 42 U.S.C. 671(a)(29)
  • All the child’s siblings who are at least age 18

The department may not provide notice to a person listed above if the department knows or suspects that the person has caused family or domestic violence.

The notice must:

  • State that the child has been removed from the parents by the department
  • Set forth the options the relative may have under Federal, State, or local laws, including the care and placement of the child and other options that may be lost if the relative fails to respond to the notice
  • Describe the requirements for the relative to become a foster parent
  • Describe additional services available to the child placed in foster care

If a child alleged to be a child in need of services is taken into custody under an order of the court, and the court orders out-of-home placement, the department is responsible for that placement and care and must consider placing the child with a suitable and willing blood or an adoptive relative caregiver, including a grandparent, aunt, uncle, or adult sibling; a de facto custodian; or a stepparent before considering any other out-of-home placement.

Requirements for Placement with Relatives

A person may operate a foster family home without a license if the person is providing care only for one or more individuals related to the person, although the person may choose to apply for licensure. If an applicant otherwise qualifies for a foster family home license, the department may issue a foster family home license to the applicant.

Before the child is placed with a blood or adoptive relative caregiver, a de facto custodian, or a stepparent, the department shall complete an evaluation based on a home visit of the relative’s home. The department also shall conduct a criminal history check of each person who is currently residing in the location designated as the out-of-home placement.

Except as provided below, the department may not make an out-of-home placement if a person has:

  • Committed an act resulting in a substantiated report of child abuse or neglect
  • Been convicted of a felony listed in § 31-27-4-13 or had a juvenile adjudication for an act that would be a felony if committed by an adult

A court may order or the department may approve an out-of-home placement if a person has a record of substantiated child abuse or neglect or conviction of certain felonies if the court makes a written finding that the person’s commission of the offense, delinquent act, or act of abuse or neglect is not relevant to the person’s present ability to care for a child, and that the placement is in the best interests of the child. However, a court or the department may not make an out-of-home placement if the person has been convicted of a felony listed in § 31-27-4-13 that is not specifically excluded under this section.

In making its written finding, the court shall consider the following:

  • The length of time since the person committed the offense, delinquent act, or abuse or neglect
  • The severity of the offense, delinquent act, or abuse or neglect
  • Evidence of the person’s rehabilitation, including the person’s cooperation with a treatment plan, if applicable
Requirements for Placement of Siblings

The department shall make reasonable efforts to promote sibling visits for every child who receives foster care, including visits when one sibling receives foster care and another sibling does not.

A child; a child’s foster parent; a child’s guardian ad litem; a court-appointed special advocate; or an agency that has the legal responsibility or authorization to care for, treat, or supervise a child may request the department to permit the child to have visits with the child’s sibling if the child or the child’s sibling, or both, receive foster care. If the department finds that the sibling visits are in the best interests of each child who receives foster care, the department shall permit the sibling visits and establish a schedule for sibling visits.

Relatives Who May Adopt

A court hearing a petition for adoption of a child may waive the reports of the adoption investigation and social study if one of the petitioners is a stepparent or grandparent of the child and the court waives the period of supervision.

Requirements for Adoption by Relatives

If the court waives the reports required above, the court shall require the licensed child-placing agency for a child who is not adjudicated to be a child in need of services or, if the child is the subject of an open child in need of services action, each local office to insure that a criminal history check is conducted and to report to the court the results of the criminal history check.

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ refers to measures taken to provide services to preserve and reunify families.

When Reasonable Efforts Are Required

The Department of Child Services shall make reasonable efforts to preserve and reunify families as follows:

  • If the child has not been removed from the home, to prevent or eliminate the need for removing the child
  • If the child has been removed from the home, to make it possible for the child to return safely home as soon as possible
When Reasonable Efforts Are NOT Required

Reasonable efforts to reunite a child with his or her family or to preserve a family are not required when the court finds any of the following:

  • A parent has been convicted of causing a suicide, involuntary manslaughter, rape, criminal deviate conduct, child molesting, or exploitation of a victim who is the parent’s child or the child’s other parent.
  • A parent has been convicted of murder or voluntary manslaughter of a victim who is the parent’s child or the child’s other parent.
  • A parent has been convicted of attempting, aiding, or conspiring to commit any of the above crimes.
  • A parent has been convicted of battery, aggravated battery, criminal recklessness, or neglect against a child.
  • The parental rights of a parent with respect to a sibling have been involuntarily terminated.
  • The child is an abandoned infant.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent of a minor may designate a standby guardian.

How to Establish a Standby Guardian

A parent may designate a standby guardian by making a written declaration naming the individual designated to serve as a standby guardian. A declarant may name an alternate to the designated standby guardian if the designated standby guardian is unable to serve, refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the declarant.

A declaration must contain the following information:

  • The names of the declarant, the designated standby guardian, and the alternate standby guardian, if any
  • The name and date of birth for each child for whom a standby guardian is being designated

A declaration executed under this section must be signed by the declarant in the presence of a notary public.

How Standby Authority is Activated

A declaration executed under this section becomes effective upon the death or incapacity (as defined in § 29-3-1-7.5) of the parent.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

A standby guardian shall have all the powers granted to a guardian under this article.

Withdrawing Guardianship

A declaration executed under this section terminates 90 days after the declaration becomes effective. If, however, the designated standby guardian files a petition for a guardianship of the minor during that 90 day period, the declaration remains in effect until the court rules on the petition.

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

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9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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4th Circuit

5th Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

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7th Circuit

8th Circuit

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

5th Circuit

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7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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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