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

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

Iowa

 

Links to State and Tribal Child Welfare Law and Policy

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Current Through March 2015

Statutes

http://search.legis.state.ia.us/nxt/gateway.dll/ar/iac?f=templates&fn=default.htm external link

  • Adoption: Title XV, Subtitle 1, Chapter 600; Title VI, Subtitle 5, Chapter 232, §§ 232.119 through 232.141
  • Child Protection: Title VI, Subtitle 5, Chapter 232, §§ 232.67 through 232.94; Subtitle 6, Chapter 235A
  • Child Welfare: Title VI, Subtitle 5, Chapters 232, 232B, 233; Subtitle 6, Chapters 234, 235, 237;
    Title XV, Subtitle 1, Chapter 600A
  • Guardianship: § 232.104
  • Youth Services: §§ 234.46; 235.7

Note: Click on ‘Iowa Code’

Regulation/Policy

https://www.legis.iowa.gov/law/administrativeRules/agenciesexternal link

Click on ‘Iowa Administrative Code,’ then select ‘Human Services Department [441].’ See Chapters 107, 108, 112-114, 117, 142, 152, 155-158, 160, 172, 175, 187, 200-204:

  • For services for youth aging out of foster care, see Chapter 187
  • For the subsidized guardianship program, see Chapter 204

http://dhs.iowa.gov/policy-manuals

Other Resources

Iowa Court RulesIowa Office of Citizens’ Aide/Ombudsman

Child Witnesses to Domestic Violence

To better understand this issue and to view it across States, download the PDF (426 KB) of this publication.

Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Child abuse’ or ‘abuse’ means any nonaccidental physical injury, or injury that is inconsistent with the history given of it, suffered by a child as the result of acts or omissions of a person responsible for the care of the child.

Neglect

The terms ‘child abuse’ or ‘abuse’ include:

  • The failure on the part of a person responsible for the care of a child to provide adequate food, shelter, clothing, medical or mental health treatment, supervision, or other care necessary for the child’s health and welfare when financially able to do so or when offered financial or other reasonable means to do so
  • The presence of an illegal drug in a child’s body as a direct and foreseeable consequence of the acts or omissions of the person responsible for the care of the child
  • That the person responsible for the care of a child has, in the presence of the child, manufactured a dangerous substance or possesses a product containing ephedrine, its salts, optical isomers, salts of optical isomers, or pseudoephedrine, its salts, optical isomers, or salts of optical isomers, with the intent to use the product as a precursor or an intermediary to a dangerous substance
  • Knowingly allowing a person to have custody of, control of, or unsupervised access to a child after knowing the person is required to register or is on the sex offender registry
Sexual Abuse/Exploitation

The terms ‘child abuse’ or ‘abuse’ include:

  • Committing a sexual offense with or to a child
  • Allowing, permitting, or encouraging the child to engage in prostitution
  • Committing acts of bestiality in the presence of a minor by a person who resides in a home with a child, as a result of the acts or omissions of a person responsible for the care of the child
  • Knowingly allowing a person to have custody of, control of, or unsupervised access to a child after knowing the person is required to register or is on the sex offender registry
  • Knowingly allowing the child access to obscene material as defined in § 728.1 or knowingly disseminating or exhibiting such material to the child
  • The recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a child for the purpose of commercial sexual activity as defined in § 710A.1

‘Sex trafficking’ means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of commercial sexual activity. ‘Sex trafficking victim’ means a victim of sex trafficking.

Emotional Abuse

The terms ‘child abuse’ or ‘abuse’ include any mental injury to a child’s intellectual or psychological capacity as evidenced by an observable and substantial impairment in the child’s ability to function within the child’s normal range of performance and behavior as the result of the acts or omissions of a person responsible for the care of the child, if the impairment is diagnosed and confirmed by a licensed physician or qualified mental health professional.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Stat. § 232.69
A report is required when a mandatory reporter reasonably believes that a child has suffered abuse.

Persons Responsible for the Child

‘Person responsible for the care of a child’ means:

  • A parent, guardian, or foster parent
  • A relative or any other person with whom the child resides who assumes care or supervision of the child, without reference to the length of time or continuity of such residence
  • An employee or agent of a public or private facility providing care for a child, including an institution, hospital, health-care facility, group home, mental health center, residential treatment center, shelter care facility, detention center, or child care facility
  • Any person providing care for a child but with whom the child does not reside, without reference to the duration of care
Exceptions

A parent or guardian legitimately practicing religious beliefs who does not provide specified medical treatment for a child, for that reason alone, shall not be considered to be abusing the child. This provision shall not preclude a court from ordering that medical service be provided to the child when the child’s health requires it.

‘Child abuse’ or ‘abuse’ shall not be construed to hold a victim responsible for failing to prevent a crime against the victim.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means committing assault, as defined in § 708.1, under any of the following circumstances:

  • The assault is between family or household members who resided together at the time of the assault.
  • The assault is between separated spouses or persons divorced from each other and not residing together at the time of the assault.
  • The assault is between persons who are parents of the same minor child regardless of whether they have been married or have lived together at any time.
  • The assault is between persons who have been family or household members residing together within the past year and are not residing together at the time of the assault.
  • The assault is between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year of the assault.

In determining whether persons are or have been in an intimate relationship, the court may consider the following nonexclusive list of factors:

  • The duration of the relationship
  • The frequency of interaction
  • Whether the relationship has been terminated
  • The nature of the relationship, characterized by either party’s expectation of sexual or romantic involvement

A person may be involved in an intimate relationship with more than one person at a time.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic abuse assault’ means an assault, as defined in § 708.1, that is domestic abuse, as defined in § 236.2.

On a first offense of domestic abuse assault, the person commits:

  • A simple misdemeanor for a domestic abuse assault, except as otherwise provided
  • A serious misdemeanor if the domestic abuse assault causes bodily injury or mental illness
  • An aggravated misdemeanor if:
    • The domestic abuse assault is committed with the intent to inflict a serious injury upon another.
    • The person uses or displays a dangerous weapon in connection with the assault.
    • The domestic abuse assault is committed by knowingly impeding the normal breathing or circulation of the blood of another by applying pressure to the throat or neck of the other person or by obstructing the nose or mouth of the other person.
Persons Included in the Definition

‘Family or household members’ means spouses, persons cohabiting, parents, or other persons related by consanguinity or affinity. ‘Family or household members’ does not include children under age 18 of persons listed.

‘Intimate relationship’ means a significant romantic involvement that need not include sexual involvement. An intimate relationship does not include casual social relationships or associations in a business or professional capacity.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Each report made by a mandated reporter shall be made both orally and in writing. Each report made by a permissive reporter may be oral, written, or both.

The written report shall be made to the Department of Human Services within 48 hours after the oral report.

Content of Reports

The oral and written reports shall contain as much of the following information as the reporter is able to furnish:

  • The names and home addresses of the child and the child’s parent(s) or other persons responsible for the child’s care
  • The child’s present whereabouts if not the same as the parents’ home address
  • The child’s age
  • The nature and extent of the child’s injuries, including any evidence of prior injury
  • The name, age, and condition of other children in the same home
  • Any other information which the person making the report believes might be helpful in establishing the cause of the injury to the child, the identity of the person or persons responsible for the injury, or in providing assistance to the child
  • The name and address of the person making the report
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

If a health practitioner discovers in a child physical or behavioral symptoms of the effects of exposure to cocaine, heroin, amphetamine, methamphetamine, or other illegal drugs, or combinations or derivatives thereof, that were not prescribed by a health practitioner, or if the health practitioner has determined through examination of the natural mother of the child that the child was exposed in utero, the health practitioner may perform or cause to be performed a medically relevant test, as defined in § 232.73, on the child. The practitioner shall report any positive results of such a test on the child to the department. The department shall begin an assessment pursuant to § 232.71B upon receipt of such a report. A positive test result obtained prior to the birth of a child shall not be used for the criminal prosecution of a parent for acts and omissions resulting in intrauterine exposure of the child to an illegal drug.

Agency Receiving the Reports

The oral report shall be made by telephone or otherwise to the Department of Human Services. If the person making the report has reason to believe that immediate protection for the child is advisable, that person also shall make an oral report to an appropriate law enforcement agency.

In regulation: Reports of child abuse shall be received by the department, central abuse registry, or child abuse hotline.

Initial Screening Decisions

Upon receipt of a report, the department shall do all of the following:

  • Immediately, upon receipt of an oral report, make a determination as to whether the report constitutes an allegation of child abuse as defined in § 232.68
  • Notify the appropriate county attorney of the receipt of the report

In regulation: Any report that alleges child abuse shall be accepted for assessment. Reports that do not meet the legal definition of child abuse shall become rejected intakes.

The primary purpose of intake is to obtain available and pertinent information regarding an allegation of child abuse and determine whether a report of child abuse becomes a case or a rejected intake.

To result in a case, the report of child abuse must include some information to indicate all of the following:

  • The alleged victim of child abuse is a child.
  • The alleged perpetrator of child abuse is a caregiver.
  • The alleged incident falls within the definition of child abuse.
Agency Conducting the Assessment/Investigation

If the department determines a report alleges child abuse, it shall conduct an appropriate assessment.

In regulation: If a report does not meet the legal definition of child abuse, but a criminal act harming a child is alleged, the department shall immediately refer the matter to the appropriate law enforcement agency. If a report alleges child sexual abuse that involves a person who was not a caregiver, the department shall refer the report to law enforcement orally as soon as practicable, and follow up in writing within 72 hours of receiving the report.

Assessment/Investigation Procedures

The primary purpose of the assessment shall be the protection of the child named in the report. The secondary purpose of the assessment shall be to engage the child’s family in services to enhance family strengths and to address needs. The assessment shall include the following:

  • Identification of the nature, extent, and cause of the injuries, if any, to the child named in the report
  • Identification of the person or persons responsible for the alleged child abuse
  • A description of the name, age, and condition of other children in the same home as the child named in the report
  • An evaluation of the home environment
  • An interview of the person alleged to have committed the child abuse, if the person’s identity and location are known
Timeframes for Completing Investigations

The department shall start the assessment within 24 hours of receiving the report.

In regulation: The child protection worker shall complete a child protective assessment summary within 20 business days from the date of the report of child abuse becoming a case.

Classification of Reports

Except as otherwise provided below, if the department issues a finding that the alleged child abuse meets the definition of child abuse, the names of the child and the alleged perpetrator of the alleged child abuse and any other child abuse information shall be placed in the central registry as a case of founded child abuse.

Cases to which any of the following circumstances apply shall not be placed on the central registry:

  • A finding of physical abuse in which the department has determined the injury resulting from the abuse was minor, isolated, and unlikely to reoccur.
  • A finding of abuse by failure to provide adequate supervision or by failure to provide adequate clothing, in which the department has determined the risk from the abuse to the child’s health and welfare was minor, isolated, and unlikely to reoccur.

In regulation: A child protective assessment summary shall consist of two parts as follows and shall include a statement of determination of whether the allegation of child abuse was founded, confirmed but not placed on the central abuse registry, or not confirmed. The statement shall include a rationale for placing or not placing the case on the central abuse registry.

Parental Drug Use as Child Abuse

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Current Through April 2015

If a health practitioner discovers in a child physical or behavioral symptoms of the effects of exposure to cocaine, heroin, amphetamine, methamphetamine, or other illegal drugs, or combinations or derivatives thereof, which were not prescribed by a health practitioner, or if the health practitioner has determined through examination of the natural mother of the child that the child was exposed in utero, the health practitioner may perform or cause to be performed a medically relevant test, as defined in § 232.73, on the child.

The practitioner shall report any positive results of such a test on the child to the Department of Human Services. The department shall begin an investigation pursuant to law upon receipt of such a report.

A positive test result obtained prior to the birth of a child shall not be used for the criminal prosecution of a parent for acts and omissions resulting in intrauterine exposure of the child to an illegal drug.

‘Child in need of assistance’ means an unmarried child:

  • Whose parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care
  • In whose body there is an illegal drug present as a direct and foreseeable consequence of the acts or omissions of the child’s parent, guardian, or custodian
  • Whose parent, guardian, or custodian does any of the following: unlawfully manufactures a dangerous substance in the presence of a child; knowingly allows such manufacture by another person in the presence of a child; or in the presence of a child possesses a product containing ephedrine, its salts, optical isomers, salts of optical isomers, or pseudoephedrine, its salts, optical isomers, salts of optical isomers, with the intent to use the product as a precursor or an intermediary to a dangerous substance

‘In the presence of a child’ means the physical presence of a child during the manufacture or possession, the manufacture or possession occurred in a child’s home, on the premises, or in a motor vehicle located on the premises, or the manufacture or possession occurred under other circumstances in which a reasonably prudent person would know that the manufacture or possession may be seen, smelled, or heard by a child.

‘Dangerous substance’ means any of the following:

  • Amphetamine, its salts, isomers, or salts of its isomers
  • Methamphetamine, its salts, isomers, or salts of its isomers
  • A chemical or combination of chemicals that poses a reasonable risk of causing an explosion, fire, or other danger to the life or health of persons who are in the vicinity while the chemical or combination of chemicals is used or is intended to be used in the process of manufacturing or as a precursor or intermediary in the manufacturing of an illegal or controlled substance

A person who is the parent, guardian, or person having custody or control over a child or a minor under age 18 with a mental or physical disability, or a person who is a member of the household in which a child or such a minor resides, commits child endangerment when the person knowingly permits a child or minor to be present at a location where amphetamine, its salts, isomers, or salts of isomers, or methamphetamine, its salts, isomers, or salts of isomers, is manufactured or where a product is possessed in violation of the law.

A person who commits child endangerment resulting in the death of a child or minor is guilty of a Class B felony. Notwithstanding § 902.9(1)(b), a person convicted of a violation of this subsection shall be confined for no more than 50 years.

A person who commits child endangerment resulting in serious injury to a child or minor is guilty of a Class C felony.

A person who commits child endangerment resulting in bodily injury to a child or minor or child endangerment that does not result in a serious injury is guilty of a Class D felony.

A person who commits child endangerment that is not subject to penalty [as a Class C or D felony] is guilty of an aggravated misdemeanor.

‘Child abuse’ or ‘abuse’ occurs when:

  • An illegal drug is present in a child’s body as a direct and foreseeable consequence of the acts or omissions of the person responsible for the care of the child.
  • The person responsible for the care of a child has, in the presence of the child, manufactured a dangerous substance, or in the presence of the child possesses a product containing ephedrine, its salts, optical isomers, salts of optical isomers, or pseudoephredrine, its salts, optical isomers, salts of optical isomers, with the intent to use the product as a precursor or an intermediary to a dangerous substance.

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Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In every case involving child abuse that results in a child protective judicial proceeding, whether or not the proceeding arises under this chapter, a guardian ad litem (GAL) shall be appointed by the court to represent the child in the proceedings. A court-appointed special advocate (CASA) may be appointed to act as GAL.

The Use of Court-Appointed Special Advocates (CASAs)

A CASA is a person duly certified by the child advocacy board created in § 237.16 for participation in the CASA program and appointed by the court to represent the interests of a child in any judicial proceeding to which the child is a party or is called as a witness or relating to any dispositional order involving the child resulting from such proceeding.

The court may appoint a CASA to act as GAL. The CASA shall receive notice of and may attend all depositions, hearings, and trial proceedings to support the child and advocate for the protection of the child. The CASA shall not be allowed to introduce evidence separately or to examine or cross-examine witnesses directly.

The CASA shall submit a written report to the court and to each of the parties to the proceedings containing results of the CASA’s initial investigation of the child’s case, including, but not limited to, recommendations regarding placement of the child and other recommendations based on the best interests of the child. The CASA shall submit subsequent reports to the court and parties as needed, detailing the continuing situation of the child’s case as long as the child remains under the jurisdiction of the court. In addition, the CASA shall file other reports to the court as required by the court.

Qualifications/Training

This issue is not addressed in the statutes reviewed.

Specific Duties

The GAL is appointed by the court to represent the interests of a child in any judicial proceeding to which the child is a party. The duties of a GAL with respect to a child shall include the following:

  • Conducting in-person interviews with the child, if the child’s age is appropriate, and interviewing each parent, guardian, or other person having custody of the child, if authorized by counsel
  • Visiting the home, residence, or both home and residence of the child and any prospective home or residence of the child, including each time placement is changed
  • Interviewing any person providing medical, mental health, social, educational, or other services to the child
  • Obtaining firsthand knowledge, if possible, of the facts, circumstances, and parties involved in the case
  • Attending any hearings pertaining to the case
  • If the child is required to have a transition plan developed in accordance with the child’s case permanency plan, assisting the transition committee in development of the transition plan

The order appointing the GAL shall grant authorization to the GAL to interview any relevant person and inspect and copy any records relevant to the proceedings, if not prohibited by Federal law. The GAL may also attend any departmental staff meeting, case conference, or meeting with medical or mental health providers, service providers, organizations, or educational institutions regarding the child, if deemed necessary by the GAL.

How the Representative Is Compensated

Before a GAL is appointed, the court shall require the person responsible for the care of the child to complete, under oath, a detailed financial statement. If, on the basis of that financial statement, the court determines that the person responsible for the care of the child is able to bear the cost of the GAL, the court shall so order. In cases where the person responsible for the care of the child is unable to bear the cost of the GAL, the expense shall be paid out of the county treasury.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A case permanency plan is required when the child has entered care due to a voluntary placement agreement or a judicial determination. The plan is designed to achieve placement in the most appropriate, least restrictive, and most familylike setting available and in close proximity to the parent’s home, consistent with the best interests and special needs of the child, and that considers the placement’s proximity to the school in which the child is enrolled at the time of placement.

In regulation: The department worker shall ensure that a case permanency plan is developed for each child who is placed in foster care if the department has agreed to provide foster care through a voluntary placement agreement, if a court has transferred custody or guardianship to the department for the purpose of foster care, or if a court has placed the child in foster care and ordered the department to supervise the placement.

In all cases, the case permanency plan shall be completed within 60 days of the date the child entered foster care.

Who May Participate in the Case Planning Process

The plan shall be developed by the Department of Human Services or the agency involved and the child’s parent, guardian, or custodian.

In regulation: The department worker shall develop the case permanency plan with the child’s parents, unless the child’s parents are unwilling to participate in the plan’s development, and with the child, unless the child is unable or unwilling to participate.

Contents of a Case Plan

The plan shall specifically include all of the following:

  • Plans for carrying out the voluntary placement agreement or judicial determination that placed the child in care
  • The type and appropriateness of the placement
  • The services that will be provided to the child, birth parents, and foster parents
  • How the services will meet the needs of the child while in care and will facilitate the child’s return home or other permanent placement
  • The most recent information available regarding the child’s health and education records
  • When a child is age 16 or older, a written transition plan of services that, based upon an assessment of the child’s needs, would assist the child in preparing for the transition from foster care to adulthood
  • The actions expected of the parent, guardian, or custodian in order for the department or agency to end its involvement with the child and the child’s family
  • If reasonable efforts to place a child for adoption or with a guardian are made concurrently with reasonable efforts to reunify, identification of the concurrent goals and timelines
  • A provision that a designee of the department or other person responsible for placement of a child out-of-State shall visit the child at least once every 6 months
  • If it has been determined that the child cannot return to the child’s home, documentation of the steps taken to make and finalize an adoption or other permanent placement
  • Information on the child’s personal history, especially if it is known that the child has behaved in a manner that threatened the safety of another person, has committed a violent act causing bodily injury to another person, or has been a victim or perpetrator of sexual abuse
  • The provisions involving sibling visitation or interaction
  • Documentation of the educational stability of the child while in foster care, including, but not limited to, the following:
    • Evidence there was an evaluation of the appropriateness of the child’s educational setting while in placement and of the setting’s proximity to the educational setting in which the child was enrolled at the time of placement
    • An assurance either that the department coordinated with appropriate local educational agencies to identify how the child could remain in the same educational setting or, if it was determined it was not in the child’s best interests to remain in that setting, that the affected educational agencies would immediately and appropriately enroll the child in another educational setting during the child’s placement and ensure that the child’s educational records were provided for use in the new educational setting

For a child who is age 16 or older, the transition plan and needs assessment shall be developed with a focus on the services, other support, and actions necessary to facilitate the child’s successful entry into adulthood. The transition plan shall be personalized at the direction of the child and shall be developed with the child present, honoring the goals and concerns of the child, and shall address the following areas of need:

  • Education
  • Employment services and other workforce support
  • Health and health-care coverage
  • Housing
  • Relationships, including local opportunities to have a mentor
  • If the needs assessment indicates the child is reasonably likely to need or be eligible for services or other support from the adult service system upon reaching age 18, provision for the child’s application for adult services

Concurrent Planning for Permanency for Children

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Current Through November 2012

As used in this section, ‘family-centered services’ means services and other support intended to safely maintain a child with the child’s family or with a relative; to safely and in a timely manner return a child to the home of the child’s parent or relative; or to promote achievement of concurrent planning goals by identifying and helping the child secure placement for adoption, with a guardian, or with other alternative permanent family connections.

The performance of reasonable efforts to place a child for adoption or with a guardian may be made concurrently with making reasonable efforts as defined in this section.

If reasonable efforts to place a child for adoption or with a guardian are made concurrently with reasonable efforts as defined in § 232.102, the concurrent goals and timelines may be identified. Concurrent case permanency plan goals for reunification and for adoption or for other permanent out-of-home placement of a child shall not be considered inconsistent in that the goals reflect divergent possible outcomes for a child in an out-of-home placement.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

An initial permanency hearing shall be held:

  • Within 12 months of the date the child was removed from the home
  • Within 30 days in a case for which the reasonable efforts requirement has been waived

Following an initial permanency hearing and the entry of a permanency order that places a child in the custody or guardianship of another person or agency, the court shall retain jurisdiction and annually review the order to ascertain whether the best interests of the child are being served.

In lieu of the procedures specified above, the court may close the case of a child in need of assistance by transferring jurisdiction over the child’s guardianship to the probate court. Upon transferring jurisdiction, the court shall direct the probate clerk, once the proposed guardian has filed an oath of office and identification in accordance with § 602.6111, to issue letters of appointment for guardianship and docket the case in probate.

In regulation: The reevaluation of the case plan shall be filed at least every 6 months, or more often when there are significant changes, when required by the court, or when required according to the rules of the service.

Persons Entitled to Attend Hearings

Any hearings or proceedings shall not take place without the presence of the child’s parent, guardian, custodian, or guardian ad litem. A parent without custody may petition the court to be made a party to the proceedings.

An agency, facility, institution, or person, including a foster parent or an individual providing preadoptive care, may petition the court to be made a party to the proceedings. If a child is of an appropriate age to attend the hearing but the child does not attend, the court shall determine whether the child was informed of his or her right to attend the hearing.

If a child is of an age appropriate to attend a hearing but the child does not attend, the court shall determine if the child was informed of the child’s right to attend the hearing. A presumption exists that it is in the best interests of a child age 14 or older to attend all hearings and all staff or family meetings involving placement options or services provided to the child. The Department of Human Services shall allow the child to attend all such hearings and meetings unless the attorney for the child finds the child’s attendance is not in the best interests of the child. If the child is excluded from attending a hearing or meeting, the department shall maintain a written record detailing the reasons for excluding the child. A copy of the written record shall be made available to the child upon the request of the child after he or she reaches the age of majority.

For purposes of this section, ‘attend’ includes the appearance of the child at a hearing by video or telephonic means.

Determinations Made at Hearings

During the hearing, the court shall consider the child’s need for a secure and permanent placement in light of any permanency plan or evidence submitted to the court and the reasonable efforts made concerning the child. Upon completion of the hearing, the court shall enter written findings and make a determination identifying a primary permanency goal for the child. If a permanency plan is in effect at the time of the hearing, the court shall also make a determination whether reasonable progress is being made in achieving the permanency goal and complying with the other provisions of that permanency plan.

Permanency Options

After a permanency hearing, the court shall do one of the following:

  • Enter an order to return the child to the child’s home
  • Enter an order to continue placement of the child for an additional 6 months, at which time the court shall hold a hearing to consider modification of its permanency order
  • Direct the county attorney or the attorney for the child to institute proceedings to terminate the parent-child relationship
  • Enter an order to do one of the following:
    • Transfer guardianship and custody of the child to a suitable person
    • Transfer sole custody of the child from one parent to another parent
    • Transfer custody of the child to a suitable person for the purpose of long-term care
  • If the department has documented to the court’s satisfaction a compelling reason for determining that an order for one of the options listed above would not be in the child’s best interests, order another planned permanent living arrangement for the child

Determining the Best Interests of the Child

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Current Through March 2016

During the [permanency] hearing, the court shall consider the child’s need for a secure and permanent placement in light of any permanency plan or evidence submitted to the court and the reasonable efforts made concerning the child. Upon completion of the hearing, the court shall enter written findings and make a determination based on identifying a primary permanency goal for the child.

The State is committed to protecting the essential Tribal relations and best interests of an Indian child by promoting practices, in accordance with the Federal Indian Child Welfare Act and other applicable law, designed to prevent the child’s voluntary or involuntary out-of-home placement and, whenever such placement is necessary or ordered, by placing the child, whenever possible, in a foster home, adoptive home, or other type of custodial placement that reflects the unique values of the child’s Tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child’s Tribe and Tribal community.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may waive the requirement for making reasonable efforts when it determines that aggravated circumstances exist, as indicated by any of the following:

  • The parent has abandoned the child.
  • Grounds for terminating parental rights apply to the child.
  • The parent’s rights have been terminated in this or another State with respect to another child who is a member of the same family, and there is clear and convincing evidence to show that the offer or receipt of services would not be likely within a reasonable period of time to correct the conditions that led to the child’s removal.
  • The parent has been convicted of the murder or voluntary manslaughter of another child of the parent.
  • The parent has been convicted of aiding, abetting, attempting, conspiring in, or soliciting the commission of the murder or voluntary manslaughter of another child of the parent.
  • The parent has been convicted of a felony assault that resulted in serious bodily injury of the child or of another child of the parent.

A petition shall be filed under any of the following circumstances:

  • The child has been placed in foster care for 15 of the most recent 22 months.
  • A court has determined aggravated circumstances exist and has waived the requirement for making reasonable efforts.
  • The child is younger than 12 months of age and has been judicially determined to have been abandoned, or the child is a newborn infant whose parent has voluntarily released custody of the child in accordance with chapter 233.
  • The parent has been convicted of murder or voluntary manslaughter of another child of the parent.
  • The parent has been convicted of aiding, abetting, attempting, conspiring in, or soliciting the commission of murder or voluntary manslaughter of another child of the parent.
  • The parent has been convicted of a felony assault that resulted in serious bodily injury to the child or another child of the parent.

The court may terminate a parent’s rights on any of the grounds listed above. The court also may terminate parental rights for any of the following:

  • Services offered to the parent have failed to correct conditions that led to the child’s abuse or neglect.
  • The child has been in out-of-home care for at least 6 months, and the parents have not maintained significant and meaningful contact with the child
  • A child who is age 4 or older has been in out-of home care for at least 12 of the past 18 months and cannot safely be returned home.
  • A child who is age 3 or younger has been in out-of-home care for at least 6 of the past 12 months and cannot safely be returned home.
  • The parent is incarcerated for a crime against a child or is unlikely to be released from prison for 5 or more years.
  • The parent has a chronic mental illness, has been repeatedly institutionalized for mental illness, and presents a danger to self or others.
  • The parent has a severe substance-related disorder and presents a danger to self or others.
  • The parent has been convicted of a felony and imprisoned for physically or sexually abusing or neglecting any child in the household.
  • The parent has been convicted of child endangerment resulting in death or serious injury of any child in the household.
  • The parent has been convicted of a felony sex offense against a minor, the parent is divorced from or was never married to the minor’s other parent, and the parent is serving a minimum sentence of confinement of at least 5 years for that offense.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition to terminate parental rights is not required when:

  • At the option of the Department of Human Services or by order of the court, the child is being cared for by a relative.
  • The department has documented a compelling reason for determining that termination would not be in the best interests of the child. A compelling reason can include evidence that the family may achieve reunification within 6 months.
  • The department has not provided services within the timeframes indicated in the case plan.

The court need not terminate parental rights when:

  • A relative has legal custody of the child.
  • The child is over age 10 and objects to the termination.
  • There is clear and convincing evidence that termination would be detrimental to the child due to closeness of the parent-child relationship.
  • It is necessary to place the child in a hospital or other facility for care and treatment, and the continuation of the parent-child relationship is not preventing a permanent family placement for the child.
  • The absence of the parent is due to the parent’s admission or commitment to any institution or health facility or due to active service in the State or Federal armed forces.
Circumstances Allowing Reinstatement of Parental Rights

If a termination of parental rights order is issued on the grounds that the child is a newborn infant whose parent has voluntarily released custody of the child under § 232.116(1)(c), the court shall retain jurisdiction to change a guardian or custodian and to allow a parent whose rights have been terminated to request vacation or appeal of the termination order. Such request must be made within 30 days of issuance of the granting of the termination order. The period for request for vacation or appeal by a parent whose rights have been terminated shall not be waived or extended, and a vacation or appeal shall not be granted for a request made after the expiration of this period. The court shall grant the vacation request only if it is in the best interests of the child.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A newborn infant may be relinquished. The term ‘newborn infant’ means a child who is, or who appears to be, 14 days old or younger.

Who May Relinquish the Infant

A parent of a newborn infant may voluntarily release custody of the newborn infant by relinquishing physical custody of the newborn infant, without expressing an intent to again assume physical custody, at an institutional health facility or by authorizing another person to relinquish physical custody on the parent’s behalf.

Who May Receive the Infant

The child be may relinquished to an institutional health facility. The term ‘institutional health facility’ means a hospital, including a facility providing medical or health services that is open 24 hours per day, 7 days per week, and is a hospital emergency room or a health-care facility.

Responsibilities of the Safe Haven Provider

Unless the parent or other person relinquishing physical custody of a newborn infant clearly expresses an intent to return to again assume physical custody of the newborn infant, an individual on duty at the facility at which physical custody of the newborn infant was relinquished shall take physical custody of the newborn infant.

The individual on duty may request the parent or other person to provide the name of the parent or parents and information on the medical history of the newborn infant and the newborn infant’s parent or parents. The individual on duty may perform reasonable acts necessary to protect the physical health or safety of the newborn infant.

As soon as possible after the individual on duty assumes physical custody of a newborn infant, the individual shall notify the Department of Human Services, and the department shall take the actions necessary to assume the care, control, and custody of the newborn infant. Within 24 hours of taking custody of the newborn infant, the department shall notify the juvenile court and the county attorney in writing of the department’s action and the circumstances surrounding the action.

Immunity for the Provider

The individual on duty and the institutional health facility in which the individual was on duty are immune from criminal or civil liability for any acts or omissions made in good faith to comply with this section.

Protection for Relinquishing Parent

The parent or other person is not required to provide his or her name or medical history information.

Any person authorized by the parent to assist with release of custody by relinquishing physical custody of the newborn infant or to otherwise act on the parent’s behalf is immune from criminal prosecution for abandonment or neglect of the newborn infant and civil liability for any reasonable acts or omissions made in good faith in assisting with the release.

In addition to any other privacy protection established in law, a record that is developed, acquired, or held in connection with an individual’s good-faith effort to voluntarily release a newborn infant in accordance with this chapter and any identifying information concerning the individual shall be kept confidential. Such record shall not be inspected or the contents disclosed except as provided in this section.

Effect on Parental Rights

Upon being notified in writing by the department, the county attorney shall file a petition alleging the newborn infant to be a child in need of assistance and a petition for termination of parental rights. A hearing on a termination of parental rights petition shall be held no later than 30 days after the day the physical custody of the newborn child was relinquished.

Notice of a petition shall be provided to any known parent and shall be served upon any putative father registered with the State Registrar of Vital Statistics.

Either parent of a relinquished newborn infant may intervene in the child in need of assistance or termination of parental rights proceedings held regarding the newborn infant and request that the juvenile court grant custody of the newborn infant to the parent. The requester must show by clear and convincing evidence that the requester is the parent of the newborn infant. If the court determines that the requester is the parent of the newborn infant and that granting custody of the newborn infant to the parent is in the newborn infant’s best interest, the court shall issue an order granting custody of the newborn infant to the parent. In addition to such order, the court may order services for the newborn infant and the parent as are in the best interest of the newborn infant.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means a person who is not the parent of a child, but who has been appointed by the court or juvenile court that has jurisdiction over the child to have a permanent self-sustaining relationship with the child, to make important decisions that have a permanent effect on the life and development of that child, and to promote the general welfare of that child.

Purpose of Guardianship

Guardianship offers more permanency than long-term foster care, but less permanency than a return to the child’s parents or adoption. When parents are unable to provide daily care for their children, and adoption is not warranted, guardianship can keep children rooted, empower families, and provide permanence for children.

Placement with a legal guardian may be appropriate if a child is unlikely to return home in the foreseeable future and adoption is not possible because either:

  • The child will not consent to adoption.
  • Parental rights cannot be terminated.
  • The child continues to benefit from the relationship with the birth family.
  • Potential guardians are not willing to adopt the child, even though there is a strong and beneficial emotional bond between them.

The recommendation of guardianship as the child’s permanency goal is appropriate when guardianship will assure the child’s safety and is consistent with the well-being and permanency needs of the child. Guardianship may be in the child’s best interests if the following factors have been considered:

  • The wishes of the child’s prospective permanent legal custodian
  • The wishes of the child age 10 or older
  • The interaction and interrelationship of the child with the birth parents, when applicable, and the prospective permanent legal custodian
  • The child’s adjustment to the present home, school, community
  • The child’s need for stability and continuity of relationships
  • The mental and physical health of all individuals involved
A Guardian’s Rights and Responsibilities

Unless otherwise enlarged or circumscribed by a court having jurisdiction over the child or by operation of law, the right and duties of a guardian with respect to a child are as follows:

  • To consent to marriage; enlistment in the armed forces of the United States; or medical, psychiatric, or surgical treatment
  • To serve as guardian ad litem, unless the interests of the guardian conflict with the interests of the child or another person has been appointed guardian ad litem
  • To serve as custodian, unless another person has been appointed custodian
  • To make periodic visits if the guardian does not have physical possession or custody of the child
  • To consent to adoption and to make any other decision that the parents could have made when the parent-child relationship existed
  • To make other decisions involving protection, education, and care and control of the child
  • Make an annual report to the court
Qualifying the Guardian

A potential guardian for a child may be the child’s foster (resource) parent, a relative, or a nonrelated person with whom the child has a relationship. The following factors must be considered when determining the appropriateness of a person to be a child’s guardian:

  • The best interests of the child
  • The potential guardian’s ability to nurture the child
  • The degree of the potential guardian’s commitment to the long-term care of the child
  • The potential guardian’s understanding of the role expected and attitude toward the child’s family
  • The results of records checks
  • A home study, unless the potential guardian is a licensed foster parent or adoptive parent
  • A home visit to determine the safety and stability of the home (if not previously done)
  • A financial statement by the family to determine the family’s financial means to care for additional children
  • Three references provided by the family, with the ability to also check three unsolicited references if needed

Criminal records checks, as well as checks of the central abuse registry and the sex offender registry, must be completed on anyone in the potential guardian’s home who is aged 14 or older. If a home study has been done, and records checks were obtained through the study, checks do not need to be completed.

If any person in the prospective guardian’s household has a record of founded abuse, a criminal conviction, or placement on the sex offender registry, the home shall not be approved for the child’s placement, unless an evaluation of the abuse or criminal conviction determines that the abuse or crime does not warrant prohibiting the placement of the child.

Procedures for Establishing Guardianship

During a permanency hearing, the court shall consider the child’s need for a secure and permanent placement in light of any permanency plan or evidence submitted to the court and the reasonable efforts made concerning the child. After a permanency hearing the court may enter an order to transfer guardianship and custody of the child to a suitable person.

Prior to entering a permanency order for guardianship, convincing evidence must exist showing that all of the following apply:

  • A termination of the parent-child relationship would not be in the best interests of the child.
  • Services were offered to the child’s family to correct the situation that led to the child’s removal from the home.
  • The child cannot be returned to the child’s home.

In policy: The Department of Human Services must submit a recommendation for guardianship to the court that includes clear and convincing evidence that:

  • Services were offered to the child’s family to correct the situation that led to the child’s removal.
  • The child cannot be returned home.
  • Adoption would not be a viable permanency option.
  • The birth parents support the guardianship recommendation.
  • The child is not in need of child welfare services.
  • The family team meeting recommendation is for guardianship.
  • The child has been living with the prospective guardian for the last 6 months.
  • The prospective guardian has a significant relationship with the child and demonstrates a willingness to make a long-term commitment to the child’s care.
  • The assessment of the prospective guardian shows that the guardian can meet the needs of the child and that his or her home is safe and stable.
  • Guardianship is in the best interests of the child.
Contents of a Guardianship Order

Any permanency order may provide restrictions upon the contact between the child and the child’s parent or parents, consistent with the best interests of the child.

In policy: Residual parental rights and responsibilities are not affected by guardianship. However, the court can define or limit the rights of the child’s parents through the guardianship order. Rights that may be affected include visitation, consent to adoption, support, and lines of inheritance.

Modification/Revocation of Guardianship

Following a permanency hearing and the entry of a permanency order that places a child in the custody or guardianship of another person or agency, the court shall retain jurisdiction and annually review the order to ascertain whether the best interests of the child are being served. Any modification shall be accomplished through a hearing procedure following reasonable notice. During the hearing, all relevant and material evidence shall be admitted and procedural due process shall be provided to all parties.

Eligibility for Guardianship Subsidy

This chapter implemented a 5-year demonstration waiver project for a subsidized guardianship program to provide financial assistance to guardians of eligible children who are not able to be adopted and who are not able to return home.

The guardian named in a permanency order under § 232.104 for a child who was previously in the custody of the department is eligible for subsidy when all of the following conditions exist:

  • The child has a documented permanency goal of long-term foster care, guardianship, or another planned permanent living arrangement.
  • The child has been in a licensed foster care placement and has lived in foster care for at least 6 of the last 12 months.
  • The child is either:
    • Age 14 or older and consents to the guardianship
    • Age 12 or older and guardianship has been determined to be in the child’s best interests
    • Under age 12 and part of a sibling group with a child aged 12 or older
  • The child has lived in continuous placement with the prospective guardian for the 6 months before initiation of the guardianship subsidy.
  • The guardian is a person who has a significant relationship with the child and demonstrates a willingness to make a long-term commitment to the child’s care.
  • The child has been randomly selected to participate in the waiver demonstration project.

The guardian may be a relative or nonrelative. Placement with that guardian must be in the best interests of the child. The best-interest determination must be documented in the case file.

The subsidized guardianship applicant or recipient need not reside in Iowa.

Links to Agency Policies

Iowa Department of Human Services, Employee’s Manual, Title 13, Chapter D(1), Subsidized Guardianship (PDF – 133 KB)

Iowa Foster & Adoptive Parents Association, Kinship Caretakers: How to Navigate Iowa’s Child Welfare Systemexternal link (PDF – 1,165 KB)

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

Within 30 days after the entry of an order transferring custody of a child to an agency for placement, the agency shall exercise due diligence in identifying and providing notice to the child’s grandparents, aunts, uncles, adult siblings, parents of the child’s siblings, and adult relatives suggested by the child’s parents, subject to exceptions due to the presence of family or domestic violence. The notice content shall include, but is not limited to, all of the following:

  • A statement that the child has been or is being removed from the custody of the child’s parent or parents
  • An explanation of the options the relative has under Federal, State, and other law to participate in the care and placement of the child on a temporary or permanent basis
  • A description of the requirements for the relative to serve as a foster family home provider or other type of care provider for the child and the additional services, training, and other support available for children receiving such care
  • Information concerning the option to apply for kinship guardianship assistance payments

The options addressed in the notice shall include, but are not limited to, assistance and support options, options for participating in legal proceedings, and any options that may be lost by failure to respond to the notice.

Parents of a sibling are considered relatives to the child for the purposes of placement. The term ‘sibling’ means an individual who is related to another individual by blood, adoption, or affinity through a common legal or biological parent.

Requirements for Placement with Relatives

A person to whom custody of the child has been transferred pursuant to this section shall file a written report with the court at least every 6 months concerning the status and progress of the child.

Requirements for Placement of Siblings

If the court orders the transfer of custody of a child and siblings to the Department of Human Services for placement, the department shall make a reasonable effort to place the child and siblings together in the same placement. This requirement remains applicable to custody transfer orders made at separate times and applies in addition to efforts made by the department to place the child with a relative.

If the siblings are not placed in the same placement together, the department shall provide the siblings with the reasons why and the efforts being made to facilitate such placement, or why making efforts for such placement is not appropriate. Unless visiting or ongoing interaction with siblings is suspended or terminated by the court, the department shall make reasonable effort to provide for frequent visits or other ongoing interaction between the child and the child’s siblings from the time of the child’s out-of-home placement until the child returns home or is in a permanent placement.

If an order is entered for termination of parental rights of a child who is subject to this section, and unless the court has suspended or terminated sibling visits or interaction, the department or child-placing agency shall do all of the following to facilitate frequent visits or ongoing interaction between the child and siblings when the child is adopted or enters a permanent placement:

  • Include in the training provided to prospective adoptive parents information regarding the importance of sibling relationships to an adopted child and counseling methods for maintaining sibling relationships
  • Provide prospective adoptive parents with information regarding the child’s siblings
  • Encourage prospective adoptive parents to plan for facilitating postadoption contact between the child and the child’s siblings
Relatives Who May Adopt

A relative within the fourth degree of kinship may adopt the child.

Requirements for Adoption by Relatives

If the prospective adoption petitioner is a relative within the fourth degree of kinship who has assumed custody of a minor person to be adopted, a preplacement investigation of this petitioner and a report of the investigation may be completed at a time established by the court or may be waived as provided below.

Any required investigation and report may be waived by the court if the adoption petitioner is related within the fourth degree of kinship to the person to be adopted. However, if an adoption petitioner discloses a criminal conviction or deferred judgment for an offense other than a simple misdemeanor or founded child abuse report, the petitioner shall notify the court of the inclusion of this information in the petition prior to the final adoption hearing, and the court shall make a specific ruling regarding whether to waive any required investigation or report.

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 efforts made to preserve and unify a family.

Reasonable efforts may include, but are not limited to, family-centered services if the child’s safety in the home can be maintained during the time the services are provided.

The term ‘family-centered services’ means services and other support intended to maintain a child safely with the child’s family or with a relative; to return a child, safely and in a timely manner, to the home of the child’s parent or relative; or to promote the achievement of concurrent planning goals by identifying and helping the child secure placement for adoption, with a guardian, or with other alternative permanent family connections. Family-centered services are adapted to the individual needs of a family in regard to the specific services and other support provided to the child’s family and the intensity and duration of service delivery. Family-centered services are intended to preserve a child’s connections to the child’s neighborhood, community, and family and to improve the overall capacity of the child’s family to provide for the needs of the children in the family.

When Reasonable Efforts Are Required

Reasonable efforts are required:

  • Prior to out-of-home placement of a child in foster care to eliminate the need for removal of the child
  • To make it possible for the child to return safely to the family’s home

If returning the child to the family’s home is not appropriate or possible, reasonable efforts shall include the efforts made in a timely manner to finalize a permanency plan for the child.

When Reasonable Efforts Are NOT Required

If the court determines by clear and convincing evidence that aggravated circumstances exist, the court may waive the requirement for making reasonable efforts. Aggravated circumstances include:

  • The parent has abandoned the child.
  • The court finds the child in need of assistance based on a finding of physical or sexual abuse or neglect.
  • The parent’s parental rights to another child have been terminated and there is clear and convincing evidence that services likely will not, within a reasonable time, correct the conditions that led to the child’s removal from the home.
  • The parent has been convicted of murder or voluntary manslaughter of another child or the attempt to commit either crime.
  • The parent has been convicted of a felony assault that resulted in serious bodily injury to the child or another child of the parent.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A petition for the appointment of a guardian on a standby basis may be filed by any person under the same procedure and requirements as provided in §§ 633.591 to 633.597 for appointment of standby conservator.

A person having physical and legal custody of a minor may petition for appointment of standby conservator.

How to Establish a Standby Guardian

A verified petition must be filed with the court. The petition shall be acted upon by the court only when an event specified in the petition has occurred.

The court will consider the preference of a child age 14 or older.

How Standby Authority is Activated

Upon a triggering event, confirming documents must be filed with the court. A hearing will be conducted to appoint the standby guardian.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

The powers and duties of such a conservator shall be the same as those of a conservator appointed in response to any of the other petitions authorized in the probate code.

Withdrawing Guardianship

The petition may be revoked by the petitioner at any time before appointment of a conservator by the court, provided that the petitioner is of sound mind. Revocation shall be accomplished by the destruction of the petition by the petitioner, or by the execution of an acknowledged instrument of revocation. If the petition has been deposited with the clerk, the revocation may also be deposited there.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

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US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

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9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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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

6th Circuit

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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

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7th Circuit

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

8th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

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3rd Circuit

 

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

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6th Circuit

7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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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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