How to write a Motion To Dismiss for DCF / CPS Juvenile Court In Kansas

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

Kansas

 

Policy and Procedures Manual

Child Witnesses to Domestic Violence

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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

‘Physical, mental, or emotional abuse’ means the infliction of physical, mental, or emotional harm, or the causing of a deterioration of a child, and may include, but shall not be limited to, maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.

‘Harm’ means physical or psychological injury or damage.

Neglect

‘Neglect’ means acts or omissions by a parent, guardian, or person responsible for the care of a child that results in harm to a child or presents a likelihood of harm, and the acts or omissions are not due solely to the lack of financial means of the child’s parents or other custodian. Neglect may include but shall not be limited to:

  • Failure to provide the child with food, clothing, or shelter necessary to sustain life or health
  • Failure to provide adequate supervision of a child or to remove a child from a situation that requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a likelihood of harm to the child
  • Failure to use resources available to treat a diagnosed medical condition if such treatment will make a child substantially more comfortable, reduce pain and suffering, or correct or substantially diminish a crippling condition from worsening
Sexual Abuse/Exploitation

‘Sexual abuse’ means any contact or interaction with a child in which the child is being used for the sexual stimulation of the perpetrator, the child, or another person. Sexual abuse includes allowing, permitting, or encouraging a child to engage in prostitution or to be photographed, filmed, or depicted in pornographic material. ‘Sexual abuse’ also shall include allowing, permitting, or encouraging a child to engage in aggravated human trafficking, as defined § 21-5426(b), if committed in whole or in part for the purpose of the sexual gratification of the offender or another.

Emotional Abuse

The term ‘physical, mental, or emotional abuse’ includes the infliction of physical, mental, or emotional harm or the causing of a deterioration of a child and may include, but is not limited to, maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.

‘Harm’ means physical or psychological injury or damage.

Abandonment

Citation: Ann. Stat. § 38-2202
‘Abandon’ or ‘abandonment’ means to forsake, desert, or cease providing care for the child without making appropriate provisions for substitute care.

Standards for Reporting

Citation: Ann. Stat. § 38-2223
A report is required when a mandatory reporter has reason to suspect that a child has been harmed as a result of physical, mental, or emotional abuse or neglect, or sexual abuse.

Persons Responsible for the Child

A responsible person includes a parent, guardian, or person responsible for the care of a child.

The term ‘parent,’ when used in relation to a child or children, includes a guardian and every person who is by law liable to maintain, care for, or support the child.

Exceptions

A parent legitimately practicing religious beliefs who does not provide specified medical treatment for a child because of religious beliefs shall not for that reason be considered a negligent parent. This exception shall not preclude a court from ordering medical treatment for the child.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the occurrence of one or more of the following acts between intimate partners or household members:

  • Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury
  • Intentionally placing, by physical threat, another in fear of imminent bodily injury
  • Engaging in any of the following acts with a minor under age 16 who is not the spouse of the offender:
    • The act of sexual intercourse
    • Any lewd fondling or touching of the person of either the minor or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the minor or the offender, or both
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic battery’ is:

  • Recklessly causing bodily harm by a family or household member against a family or household member
  • Knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting, or angry manner
Persons Included in the Definition

In criminal law: ‘Family or household member’ means persons age 18 or older who are:

  • Spouses or former spouses
  • Parents or stepparents and children or stepchildren
  • Persons who are residing together or who have resided together in the past
  • Persons who have a child in common regardless of whether they have been married or have lived together at any time

‘Family or household member’ also includes a man and woman if the woman is pregnant and the man is alleged to be the father regardless of whether they have been married or have lived together at any time.

In civil law: ‘Intimate partners or household members’ means persons who are or have been in a dating relationship, persons who reside together or who have formerly resided together, or persons who have had a child in common.

‘Dating relationship’ means a social relationship of a romantic nature. A dating relationship shall be presumed if a plaintiff verifies that such relationship exists. In addition to any other factors the court deems relevant, the court shall consider the following factors in making a determination of whether a relationship exists or existed:

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

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone who, without malice, participates in making a report to the secretary [of Social and Rehabilitation Services] or a law enforcement agency that relates to a suspicion that a child may be a child in need of care, or who participates in any activity or investigation relating to the report, or who participates in any judicial proceeding resulting from the report, shall have immunity from any civil liability that might otherwise be incurred or imposed.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

When any mandated reporter has reason to suspect that a child has been harmed as a result of physical, mental, or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided below. The report may be made orally and shall be followed by a written report if requested.

Content of Reports

Every report shall contain, if known:

  • The names and addresses of the child and the child’s parents or other persons responsible for the child’s care
  • The location of the child if other than the child’s residence
  • The child’s gender, race, and age
  • The reasons the reporter suspects the child may be a child in need of care
  • The nature and extent of the harm to the child, including any evidence of previous harm
  • Any other information that the reporter believes might be helpful in establishing the cause of the harm and the identity of the persons responsible for the harm

When reporting a suspicion that a child may be in need of care, the reporter shall disclose protected health information freely and cooperate fully with the secretary and law enforcement throughout the investigation and any subsequent legal process.

Reporting Suspicious Deaths

A mandated reporter who has information relating to the death of a child shall immediately notify the coroner, as provided by § 22a-242.

When a child dies, a law enforcement officer, health-care provider, or any other person having knowledge of the death shall immediately notify the coroner of the known facts concerning the time, place, manner, and circumstances of the death.

Reporting Substance-Exposed Infants

A report of a newborn child that involves alcohol or other drug abuse by the child’s mother shall be accepted for assessment when the report indicates the potential for failure or refusal of the parent to provide adequate care for the child. The assignment determination should focus on the situation of the child rather than solely on the substance abuse of the mother.

When a review of the child’s situation indicates the family may benefit from services, the report should be accepted for assessment. The report shall be assigned for a same day response to address any immediate needs of the family.

Agency Receiving the Reports

Reports shall be made to the secretary of Social and Rehabilitation Services, except as follows:

  • When the Department of Social and Rehabilitation Services is not open for business, reports shall be made to the appropriate law enforcement agency. On the next day that the department is open for business, the law enforcement agency shall report to the department any report received and any investigation initiated pursuant to § 38-2226. The reports may be made orally or, on request of the secretary, in writing.
  • Reports of child abuse or neglect occurring in an institution operated by the Department of Social and Rehabilitation Services or the Department of Juvenile Justice shall be made to the attorney general.
  • Reports of child abuse or neglect committed by persons employed by the Department of Social and Rehabilitation Services, or the children of employees, shall be made to the appropriate law enforcement agency.
Initial Screening Decisions

Whenever any person furnishes information to the secretary that a child appears to be a child in need of care, the department shall make a preliminary inquiry to determine whether the interests of the child require further action. Whenever practicable, the inquiry shall include a preliminary investigation of the circumstances that were the subject of the information, including the home and environmental situation and the previous history of the child. If reasonable grounds exist to support the allegations of abuse or neglect, immediate steps shall be taken to protect the health and welfare of the abused or neglected child, as well as that of any other child under the same care who may be harmed by abuse or neglect. After the inquiry, if the secretary determines it is not otherwise possible to provide the services necessary to protect the interests of the child, the secretary shall recommend to the county or district attorney that a petition be filed.

In regulation: An initial assessment is made to determine whether there are reasonable grounds to believe abuse or neglect exists and immediate steps are needed to protect the health and welfare of the abused or neglected child. An initial assessment is made on all reports received by the agency. Following the initial assessment, the following criteria shall be used to determine whether the report may be completed with the decision to not assign for further assessment:

  • The child has not been harmed or is not likely to be harmed.
  • It concerns abuse or neglect that occurred in the past.
  • It fails to provide the information necessary to locate the child.
  • It is known to be fictitious and/or malicious.
  • The incident has been or is being assessed by the department and/or law enforcement.
Agency Conducting the Assessment/Investigation

The department and law enforcement officers shall have the duty to receive and investigate reports of child abuse or neglect to determine whether the report is valid and whether action is required to protect the child from further abuse or neglect.

If the department and officers determine that no action is necessary to protect the child but that a criminal prosecution should be considered, the case shall be referred to the appropriate law enforcement agency.

Assessment/Investigation Procedures

Investigatory activities may vary from case to case based on the specifics of the case and will commonly involve the following activities:

  • Searching child abuse, criminal, and sex offense history records
  • Interviewing the reporter and witnesses (if any) to the alleged maltreatment
  • Interviewing the child victim, the child’s parents and other caregivers, and the suspected perpetrator
  • Visiting the scene of the alleged maltreatment, documenting relevant environmental information, and requesting a law enforcement officer to seize physical evidence
  • Obtaining relevant records from the department, law enforcement, medical practitioners, or other relevant entities
  • Making and documenting behavioral observations such as the appearance and effect of witnesses and alleged perpetrators when presented with questions or information about the alleged maltreatment; the child’s behavior in the presence of caregivers or the alleged perpetrator; the type and quality of interaction of family members; statements; or behaviors of any person that indicate truthfulness or lying; any mental, emotional, or physical impairment of any other child or adult; behaviors indicating alcohol or other drug use, etc.

The activities of an assessment may vary from case to case and will commonly involve the following activities:

  • Evaluating the quality and sufficiency of the evidence and the plausibility of explanations for the harm
  • Considering alternative explanations for the injury
  • Evaluating contributing factors according to the safety and risk assessment
  • Considering abuse, criminal, and sex offense histories that indicate potential risk and safety concerns
  • Reaching a tentative conclusion whether the alleged maltreatment occurred
  • Assessing whether there is immediate danger to the child
  • Considering alternative protection actions if necessary and selecting one
  • Assessing long-term risk of reoccurrence
Timeframes for Completing Investigations

When a report alleging child abuse or neglect is assigned for assessment, the supervisor shall determine the appropriate response time consistent with the facts reported and according to the following criteria:

  • Same Day: When there is reason to believe that a child has been seriously injured or is in immediate serious danger
  • 72 Hours: All other reports
Classification of Reports

Reports may be classified as follows:

  • Unsubstantiated: The facts or circumstances do not provide clear and convincing evidence to meet the statutory definition of abuse or neglect.
  • Substantiated: The facts and circumstances provide clear and convincing evidence to conclude the alleged perpetrator’s actions or inactions do meet the statutory definition of abuse or neglect.

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Parental Drug Use as Child Abuse

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Current Through April 2015

Aggravated endangering a child is:

  • Recklessly causing or permitting a child under age 18 to be placed in a situation in which the child’s life, body, or health is endangered
  • Causing or permitting the child to be in an environment in which the person knows or reasonably should know that any person is distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any methamphetamine or analog thereof
  • Causing or permitting the child to be in an environment in which the person knows or reasonably should know that drug paraphernalia or volatile, toxic, or flammable chemicals are stored for the purpose of manufacturing or attempting to manufacture any methamphetamine or analog thereof

Aggravated endangering a child is a severity level 9 person felony. The sentence for a violation of aggravated endangering a child shall be served consecutively to any other term or terms of imprisonment imposed. The sentence shall not be considered a departure and shall not be subject to appeal.

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Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

Upon the filing of a petition, the court shall appoint an attorney to serve as guardian ad litem (GAL) for a child who is the subject of the proceedings. When the child’s position is not consistent with the determination of the GAL as to the child’s best interests, a second attorney may be appointed to serve as attorney for the child.

The Use of Court-Appointed Special Advocates (CASAs)

The court at any stage of a proceeding may appoint a special advocate for the child who shall serve until discharged by the court and whose primary duties shall be to advocate the best interests of the child and assist the child in obtaining a permanent, safe, and homelike placement. The court-appointed special advocate (CASA) shall have such qualifications and perform such specific duties and responsibilities as prescribed by rule of the Supreme Court.

Qualifications/Training

The GAL shall be an attorney.

In court rules: A GAL should participate in prerequisite education prior to appointment. Areas of education should include:

  • Dynamics of abuse and neglect
  • Roles and responsibilities
  • Cultural awareness
  • Communication and communication with children skills
  • Information gathering and investigatory techniques
  • Advocacy skills
  • Child development
  • Mental health and substance abuse issues
  • Permanence and the law
  • Community resources
  • Professional responsibility
  • Special education and school law
  • The code for the care of children
Specific Duties

The GAL shall make an independent investigation of the facts upon which the petition is based and shall appear for and represent the best interests of the child. When the child’s position is not consistent with the determination of the GAL as to the child’s best interests, the GAL shall inform the court of the disagreement. The GAL or the child may request the court to appoint a second attorney to serve as attorney for the child, and the court, on good cause shown, may appoint such second attorney. The attorney for the child shall allow the child and the GAL to communicate with one another but may require such communications to occur in the attorney’s presence.

A GAL appointed to represent the best interests of a child or a second attorney appointed for a child shall continue to represent the child at all subsequent hearings in the proceedings, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue.

How the Representative Is Compensated

An attorney appointed pursuant to this section shall be allowed a reasonable fee for services that may be assessed as an expense in the proceedings.

The expenses for proceedings under this code, including fees and expenses approved by the court for appointed attorneys, shall be paid by the board of county commissioners from the general fund of the county.

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Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Whenever a child is subject to the jurisdiction of the court pursuant to the code, an initial permanency plan shall be developed for the child and submitted to the court within 30 days of the initial order of the court.

From the Children and Family Services Policy and Procedure Manual: The initial case plan is developed within 20 calendar days of the date the services are initiated. The date services are initiated is defined as either the date the family agrees to work with the Department of Social and Rehabilitation Services (beyond 30 days) or the date of referral to a child welfare case management provider.

A child/family case planning conference shall be completed with the family when:

  • There is an open family services case and the child is not in the custody of the department.
  • There is an open family preservation case and no child in the family is in department custody.
  • A youth, no longer in department custody, requests self-sufficiency/independent living services.
  • A child is in department custody, regardless of placement setting.

Each child requires his or her own case plan. A case plan is required for all cases open for services.

Who May Participate in the Case Planning Process

If the child is in the custody of the secretary or receiving services, the secretary shall prepare the plan. Otherwise, the plan shall be prepared by the person who has custody or, if directed by the court, by a court services officer.

From the Policy and Procedure Manual: Participants in the case planning process are selected based upon their involvement in the life of the child. Efforts shall be made to involve both parents when possible.

The following persons must be invited to participate in all case planning conferences:

  • Parents or legal guardians
  • The child, if age 7 or older, providing the child has the ability to understand the process
  • The case management provider or social worker

In addition, if a child or children are in the custody of the secretary, the following persons shall be invited:

  • The DCF staff assigned to the case
  • The guardian ad litem
  • The resource family, including relative and nonrelated kin providers, for a child in out-of-home placement
  • The court-appointed special advocate, if applicable
  • The Tribal representative for children when the Indian Child Welfare Act applies

Other persons who should be invited may include:

  • Residential or institutional setting treatment staff, if applicable
  • The prospective custodian, if permanent custodianship is the permanency plan
  • The prospective adoptive parents
  • Teachers
  • The education advocate assigned to the child
  • The youth’s positive adult connection
  • Any other individuals important to the family or the child who can contribute to the case planning process
  • The case management provider of a parent with a disability, if applicable
  • The corrections counselor for an incarcerated parent or parole officer for a paroled parent
  • The independent living coordinator for all youth in out-of-home placement starting at age 16, to begin preparation for self-sufficiency services if needed
Contents of a Case Plan

The permanency plan:

  • Describes the permanency goal that, if achieved, will most likely give the child a permanent and safe living arrangement
  • Describes the child’s level of physical health, mental and emotional health, and educational functioning
  • Provides an assessment of the needs of the child and family
  • Describes the services to be provided the child, the child’s parents, and the child’s foster parents, if appropriate
  • Includes a description of the tasks and responsibilities designed to achieve the plan and to whom assigned
  • Includes measurable objectives and time schedules for achieving the plan

In addition to the requirements above, if the child is in an out-of-home placement, the permanency plan shall include:

  • A plan for reintegration of the child’s parent or parents, or if reintegration is determined not to be a viable alternative, a statement for the basis of that conclusion and a plan for another permanent living arrangement
  • A description of the available placement alternatives
  • A justification for the placement selected, including a description of the safety and appropriateness of the placement
  • A description of the programs and services that will help the child prepare to live independently as an adult

From the Policy and Procedure Manual: The plan contains specific services to be provided to meet the needs of the family. It identifies specific steps to be taken by the family, the social worker, child welfare case management provider, and any other service providers involved. The plan documents this participation for purposes of meeting the child’s protection objective of the plan, the goals for the family, and/or young adult working toward self-sufficiency, timeframes to meet goals, criteria for success, and permanency goals.

Case plans shall:

  • Be relevant to the critical issues in the family situation
  • Be realistic in terms of the emotional, physical, and intellectual capabilities of the family members
  • Be written in language that is clear and understandable to the family and youth
  • Address the issues identified in the family-based assessment
  • Describe how success shall be determined
  • Specify the timelines and review dates
  • Describe possible outcomes as the case plan is implemented
  • Have the signature of all case plan participants
  • Document the participation of the family in family meetings
  • Include any relevant orders from the court
  • Include actions likely to be taken if conditions of the agreement are not carried out

A case plan shall:

  • Contain timelines for reintegration or other permanency goal, or self-sufficiency, child protection objectives, and measurable tasks needed to be accomplished
  • Include the visitation/interaction plan
  • Document service delivery
  • Document reasonable efforts made to make it possible for a child to safely return home
  • Document if the court has found such efforts not to be a viable alternative
  • Document steps taken to finalize the permanent custodianship

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Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A permanency hearing shall be held:

  • Within 12 months of the date the court authorized the child’s removal from the home and at least every 12 months thereafter
  • Within 30 days of a determination that reintegration may not be a viable alternative for the child

In policy: A formal case planning review is conducted at least every 170 days. Any member of the case planning team may request a formal review of the case plan at any time. The purpose is to re-evaluate the case plan and modify it as needed to better meet the needs of the family and the child.

Persons Entitled to Attend Hearings

Notice of the time and place of the permanency hearing shall be given to the parties and interested parties. The notice shall state that the person receiving the notice shall have the right to be heard at the hearing. The notice shall be sent to the following:

  • The child’s foster parents or permanent custodian
  • Preadoptive parents for the child, if any
  • The child’s grandparents or, if no grandparent is living, the closest relative of each of the child’s parents whose address is known
  • The person having custody of the child
  • Upon request, to any person having close emotional ties with the child and who is deemed by the court to be essential to the deliberations before the court

Individuals receiving notice shall not be made a party or interested party to the action solely on the basis of this notice and opportunity to be heard. Opportunity to be heard shall be at a time and in a manner determined by the court and does not confer an entitlement to appear in person.

Determinations Made at Hearings

The purpose of the permanency hearing is determining progress toward accomplishment of a permanency plan. The court shall enter a finding as to whether reasonable efforts have been made by appropriate public or private agencies to rehabilitate the family and achieve the permanency goal in place at the time of the hearing.

When the court finds that reintegration of the family continues to be a viable alternative, the court shall determine whether and, if applicable, when the child will be returned to the parent. The court may rescind any of its prior dispositional orders and enter any dispositional order authorized by this code or may order that a new plan for the reintegration be prepared and submitted to the court.

If the court finds reintegration is no longer a viable alternative, the court shall consider whether:

  • The child is in a stable placement with a relative.
  • Services set out in the case plan necessary for the safe return of the child have been made available to the parent with whom reintegration is planned.
  • Compelling reasons are documented in the case plan to support a finding that neither adoption nor appointment of a permanent custodian are in the child’s best interests.
Permanency Options

The court will determine whether and, if applicable, when the child will be:

  • Reintegrated with the child’s parents
  • Placed for adoption
  • Placed with a permanent custodian
  • Placed in another planned permanent arrangement when there is documented evidence that there are compelling reasons why another permanent placement is not in the child’s best interests

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Determining the Best Interests of the Child

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

Current Through March 2016

The code shall be liberally construed to carry out the policies of the State, which are to:

  • Consider the safety and welfare of a child to be paramount in all proceedings under the code
  • Provide that each child who comes within the provisions of the code shall receive the care, custody, guidance, control, and discipline that will best serve the child’s welfare and the interests of the State, preferably in the child’s home and recognizing that the child’s relationship with such child’s family is important to the child’s well-being
  • Make the ongoing physical, mental, and emotional needs of the child decisive considerations in proceedings under this code
  • Acknowledge that the time perception of a child differs from that of an adult and to dispose of all proceedings under this code without unnecessary delay
  • Encourage the reporting of suspected child abuse and neglect
  • Investigate reports of suspected child abuse and neglect thoroughly and promptly
  • Provide for the protection of children who have been subject to physical, mental, sexual, or emotional abuse or neglect
  • Provide preventative and rehabilitative services, when appropriate, to abused and neglected children and their families so, if possible, the families can remain together without further threat to the children
  • Provide stability in the life of a child who must be removed from the home of a parent
  • Place children in permanent family settings, in the absence of compelling reasons to the contrary

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Grounds for Involuntary Termination of Parental Rights

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

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may terminate parental rights when it finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition that makes the parent unable to care properly for a child, and the conduct or condition is unlikely to change in the foreseeable future. In making a determination of unfitness, the court shall consider, but is not limited to, the following:

  • Emotional illness, mental illness, mental deficiency, or physical disability of such duration or nature as to make the parent unable to care for the child
  • Conduct toward a child of a physically, emotionally, sexually cruel, or abusive nature
  • The use of intoxicating liquors or dangerous drugs that render the parent unable to care for a child
  • Physical, mental, or emotional abuse; neglect; or sexual abuse of a child
  • Conviction of a felony and imprisonment
  • Unexplained injury or death of another child or stepchild of the parent
  • Failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family
  • Lack of effort on the part of the parent to adjust the parent’s circumstances, conduct, or conditions to meet the needs of the child
  • Whether the child has been in extended out-of-home placement as a result of actions or inactions attributable to the parent and any of the factors listed below apply

In addition, when a child is not in the physical custody of a parent, the court shall consider, but is not limited to, the following:

  • The parent has failed:
    • To assure care of the child when able to do so
    • To maintain regular visitation, contact, or communication with the child
    • To carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home
    • To pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay
  • A parent has previously been found to be an unfit parent.
  • A parent has twice before been convicted of a crime against the person or a sex offense, or the attempt to commit such a crime, and the victim was under age 18.
  • On two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care.
  • The parent has been convicted of causing the death of another child or stepchild of the parent.
  • The child has been in out-of-home placement for a cumulative period of 1 year or longer, and the parent has substantially neglected or willfully refused to carry out a reasonable plan for reintegration of the child into the parental home.
  • The child has been in out-of-home placement for a cumulative period of 2 years or longer, the parent has failed to carry out a reasonable plan for reintegration of the child into the parental home, and there is a substantial probability that the parent will not carry out such plan in the near future.
  • A parent has been convicted of capital murder or voluntary manslaughter, or has been adjudicated a juvenile offender, and the victim of such murder was the other parent of the child.
  • A parent abandoned or neglected the child after having knowledge of the child’s birth.
  • A parent has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth.
  • A father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the 6 months prior to the child’s birth.
  • A father abandoned the mother after having knowledge of the pregnancy.
  • A parent has been convicted of rape resulting in the conception of the child.
  • A parent has failed to assume the duties of a parent for 2 consecutive years prior to the filing of the petition. In making this determination the court may disregard incidental visitations, contacts, communications, or contributions.
Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

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Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

An infant who is 45 days old or younger may be relinquished.

Who May Relinquish the Infant

A parent or other person having lawful custody of an infant that has not suffered bodily harm may surrender physical custody of the infant.

Who May Receive the Infant

Physical custody of the infant may be surrendered to any employee who is on duty at a fire station, city or county health department, or medical care facility.

Responsibilities of the Safe Haven Provider

As soon as possible after an employee takes physical custody of an infant, such person shall notify a local law enforcement agency. Upon receipt of such notice, a law enforcement officer shall take custody of the infant as an abandoned child.

Any person, city or county agency, or medical care facility taking physical custody of an infant shall perform any act necessary to protect the physical health or safety of the infant.

Immunity for the Provider

Any person, city or county agency, or medical care facility taking physical custody of an infant shall be immune from liability for any injury to the infant that may result from taking care of the infant.

Protection for Relinquishing Parent

No parent or other person having lawful custody of an infant shall be prosecuted for abandonment of a child, if such parent or person surrenders custody of an infant in the manner provided by § 38-2282, and if such infant has not suffered bodily harm.

Effect on Parental Rights

At a hearing for termination of termination of parental rights, a finding of unfitness may be made if the court finds that the custody of the child was surrendered pursuant to § 38-2282, or the child was left under such circumstances that the identity of the parents is unknown and cannot be ascertained, despite diligent searching, and the parents have not come forward to claim the child within 3 months after the child is found.

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Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘custody,’ whether temporary, protective, or legal, means the status created by court order or statute that vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, subject to restrictions placed by the court.

‘Kinship care’ means the placement of a child in the home of the child’s relative or in the home of another adult with whom the child or the child’s parent already has a close emotional attachment.

The term ‘permanency goal’ means the outcome of the permanency planning process, which may be reintegration, adoption, appointment of a permanent custodian, or another planned permanent living arrangement.

The term ‘permanent custodian’ means a judicially approved permanent guardian of a child pursuant to § 38-2272.

Purpose of Guardianship

For youth for whom the court has determined that reintegration and adoption are not viable permanency options, permanent custodianship provides the child with the next preferable goal. Permanent custodianship enables the caregiver to exercise all the rights and responsibilities of a parent without the on-going oversight of the Department for Children and Families. Custodianship may be an option for youth with or without the termination of parental rights.

A Guardian’s Rights and Responsibilities

Subject to limitations included in the custodianship order, a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:

  • Consent to an adoption of the child
  • Be subject to court-ordered child support or medical support

Unless there has been a judicial finding of unfitness or court-ordered limitations, a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child’s best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.

If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the obligation to pay child support and medical support, the right to inherit from the child, and the right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.

If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child.

Qualifying the Guardian

Prior to appointing a permanent custodian, the court shall receive and consider an assessment of any potential permanent custodian as provided in § 59-2132. In making an order appointing a permanent custodian, the court shall give preference, to the extent that the court finds it in the child’s best interests, first to appointing a permanent custodian who is a relative of the child and second to a person with whom the child has close emotional ties.

In making the assessment, the person authorized to perform assessments or the Department for Children and Families is authorized to observe the child in the petitioner’s home, verify financial information of the petitioner, and clarify any genetic and medical history filed with the petition. The assessment also must include checking the name of the petitioner with the child abuse and neglect registry through the department and, when appropriate, with a similar registry in another State or nation. Criminal history checks are required for determining whether the petitioner has been convicted of a felony for any act described in articles 54, 55, or 56 of chapter 21 of the Kansas Statutes or §§ 21-6104, 21-6325, 21-6326, or 21-6418 through 21-6421; of a felony violation of article 57 of chapter 21 of the Kansas Statutes within the last 5 years; or any felony violation of any provision of the uniform controlled substances act.

Procedures for Establishing Guardianship

A permanent custodian may be appointed:

  • With the consent and agreement of the parents and approval by the court
  • After a finding of parental unfitness pursuant to § 38-2269
  • After termination of parental rights

Upon the appointment of a permanent custodian, the department’s custody of the child shall cease. The court’s jurisdiction over the child shall continue unless the court enters an order terminating jurisdiction.

Parental consent to the appointment of a permanent custodian shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If the consent is acknowledged before a judge, it shall be the duty of the court to advise the consenting parent of the consequences of the consent, including the following:

  • Do you understand that your parental rights are not being terminated and you can be ordered to pay child support and medical support for your child?
  • Do you understand that to keep your rights, you must keep the court up to date about how to contact you?
  • Do you understand that if your child is ever placed for adoption, the court will try to let you know by using the information you have given them?
  • Do you understand that if you want information about your child’s health or education, the court will send the information to the latest address the court has?
  • Do you understand that you may be able to have some contact with your child, but only if the permanent custodian decides it is in the child’s best interests and if the court allows the contact?
  • Do you understand that unless the court orders differently, the permanent custodian has the right to make the following decisions about your child care and consent to the child’s marriage; medical treatment; mental health treatment; and make other critical health-care decisions?
Contents of a Guardianship Order

When the court retains jurisdiction after appointment of a permanent custodian, the court, in its order, may impose limitations or conditions upon the rights and responsibilities of the permanent custodian including, but not limited to, the right to:

  • Determine contact with the biological parent
  • Consent to marriage; psychosurgery, removal of a bodily organ, or amputation of a limb; sterilization; behavioral and medical experiments; withholding life-prolonging medical treatment; placement in a treatment facility; or placement in a psychiatric hospital or an institution for the developmentally disabled
Modification/Revocation of Guardianship

A parent’s consent to custodianship is final when executed, unless the parent whose consent is at issue, prior to issuance of the order appointing a permanent custodian, proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest with that parent.

Eligibility for Guardianship Subsidy

Children may be considered for a permanent custodianship subsidy if they are age 14 or older, are part of a sibling group that has one child age 14 or older who are being placed together, or have other extenuating circumstances that make adoption not a reasonable option.

The permanent custodianship subsidy is not an entitlement program, and the child must meet all of the following criteria:

  • The child is in the custody of the department with or without parental rights terminated at the time permanent custodianship is established.
  • A court has issued an order appointing a permanent custodian.
  • The child is not receiving Supplemental Security Income benefits.
  • The permanent custodian meets eligibility to receive Temporary Assistance for Families (TAF).
Links to Agency Policies

Kansas Department for Children and Families, Policy and Procedure Manual, click on ‘6000, Permanent Custodianship & Adoption’

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Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘kinship care’ means the placement of a child in the home of the child’s relative or in the home of another adult with whom the child or the child’s parent already has a close emotional attachment.

If the court has ordered the child removed from the custody of his or her parent(s), the court shall enter an order awarding custody to:

  • A relative of the child or to a person with whom the child has close emotional ties who shall not be required to be licensed
  • Any other suitable person
  • A shelter facility
  • A youth residential facility
  • A staff-secure facility, notwithstanding any other provision of law, if the child has been subjected to human trafficking, aggravated human trafficking, or commercial sexual exploitation of a child, or the child committed an act which, if committed by an adult, would constitute a violation of § 21-6419
  • The Department for Children and Families if the child is age 15 or younger, or age 16 or 17 if the child has no identifiable parental or family resources or shows signs of physical, mental, emotional, or sexual abuse

Custody awarded under this subsection shall continue until further order of the court.

Requirements for Placement with Relatives

A relative of the child or to a person with whom the child has close emotional ties who receives custody of the child shall not be required to be licensed under Chapter 65, Article 5.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

The term ‘relative’ means a person related by blood, marriage, or adoption but, when referring to a relative of a child’s parent, does not include the child’s other parent.

Requirements for Adoption by Relatives

The adoption assessment and report required by this section may be waived by the court upon review of a petition requesting such a waiver by a relative of the child.

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

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

Current Through March 2016

What Are Reasonable Efforts

The court may place the child in the custody of either parent subject to terms and conditions that the court prescribes to assure the proper care and protection of the child that includes, but are not limited to:

  • Supervision of the child and the parent by a court services officer
  • Participation by the child and the parent in available programs operated by an appropriate individual or agency
  • Any special treatment or care the child needs for his or her physical, mental, or emotional health and safety
When Reasonable Efforts Are Required

The court shall not enter an order removing a child from the custody of a parent pursuant to this section unless the court first finds probable cause that:

  • The child is likely to sustain harm if not immediately removed from the home.
  • Allowing the child to remain in home is contrary to his or her welfare.
  • Immediate placement of the child is in his or her best interests, and reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home.
  • An emergency exists that threatens the safety of the child.
When Reasonable Efforts Are NOT Required

If custody of the child has been awarded to a person other than a parent, a permanency plan shall be prepared. If a permanency plan is provided at the dispositional hearing, the court may determine whether reintegration is a viable alternative. In determining whether reintegration is a viable alternative, the court shall consider whether:

  • The parent has been found by a court to have committed one of the following crimes or to have aided and abetted, attempted, conspired, or solicited the commission of one of these crimes:
    • First- or second-degree murder
    • Capital murder
    • Voluntary manslaughter
    • Felony battery that resulted in bodily injury
  • The parent has subjected the child or another child to aggravated circumstances.
  • The parent has previously been found to be an unfit parent.
  • The child has been in extended out-of-home placement.
  • The parents have failed to work diligently toward reintegration.
  • The secretary has provided the family with services necessary for the safe return of the child to the home.
  • It is reasonable to expect reintegration to occur within a timeframe consistent with the child’s developmental needs.

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Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

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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.  

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2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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

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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.

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

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US Supreme Court

CPS Statutes

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

 

 

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3rd Circuit

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

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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)

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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)

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5th Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

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