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

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

Kentucky

 

Links to State and Tribal Child Welfare Law and Policy

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Current Through March 2015

Statutes

http://www.lrc.state.ky.us/kar/922/001/330.htm

http://www.lrc.ky.gov/statutes/

  • Adoption: Title XVII, Chapter 199, §§ 199.470 through 199.5955
  • Child Protection: Title LI, Chapter 620, §§ 620.020 through 620.180; 620.500 through 620.550
  • Child Welfare: Title LI, Chapters 615, 620, 625; Title XVII, Chapter 199, §§ 199.800 through 199.805
  • Guardianship: § 403.270
  • Youth Services: §§ 620.140; 625.025
Regulation/Policy

http://lrc.ky.gov/KAR/titles.htm

See Title 922, Chapter 1:

  • For Kinship Foster Care Program, see § 1:130
  • For youth aging out of foster care, see §§ 1:450 and 1:500
Other Resources

Kentucky Court of Justice Local Rules of PracticeKentucky Office of the Ombudsman

Child Witnesses to Domestic Violence

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

Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused or neglected child’ means a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, or other person exercising custodial control or supervision:

  • Inflicts or allows to be inflicted upon the child physical or emotional injury by other than accidental means
  • Creates or allows to be created a risk of physical or emotional injury to the child by other than accidental means

‘Physical injury’ means substantial physical pain or any impairment of physical condition.

‘Serious physical injury’ means physical injury that creates a substantial risk of death or causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily member or organ.

Neglect

The term ‘abused or neglected child’ includes a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, or other person exercising custodial control or supervision:

  • Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including, but not limited to, parental incapacity due to alcohol and other drug abuse
  • Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child
  • Does not provide the child with adequate care, supervision, food, clothing, shelter, education, or medical care necessary for the child’s well-being
  • Fails to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the child to the parent that results in the child remaining committed to the cabinet and remaining in foster care for 15 of the most recent 22 months
Sexual Abuse/Exploitation

The term ‘abused or neglected child’ includes a child whose health or welfare is harmed or threatened with harm when:

  • His or her parent, guardian, or other person exercising custodial control or supervision:
    • Commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon the child
    • Creates or allows to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child
  • A person age 21 or older commits or allows to be committed an act of sexual abuse, sexual exploitation, or prostitution upon a child younger than age 16.

‘Sexual abuse’ includes, but is not necessarily limited to, any contacts or interactions in which the parent, guardian, person in a position of authority or special trust, or other person having custodial control or supervision of the child or responsibility for his or her welfare, uses or allows, permits, or encourages the use of the child for the purposes of sexual stimulation of the perpetrator or another person.

‘Sexual exploitation’ includes, but is not limited to, allowing, permitting, or encouraging the child to engage in prostitution or an act of obscene or pornographic photographing, filming, or depicting of a child.

Emotional Abuse

‘Emotional injury’ means an injury to the mental or psychological capacity or emotional stability of a child as evidenced by a substantial and observable impairment in the child’s ability to function within a normal range of performance and behavior with due regard to his or her age, development, culture, and environment, as testified to by a qualified mental health professional.

Abandonment

Citation: Rev. Stat. § 600.020
The term ‘abused or neglected child’ includes a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, or other person exercising custodial control or supervision abandons the child.

Standards for Reporting

Citation: Rev. Stat. § 620.030
A report is required when any person knows or has reasonable cause to believe that a child is dependent, neglected, or abused. In addition, a report must be made when any person knows or has reasonable cause to believe that a child is a victim of human trafficking, as defined in § 529.010.

Persons Responsible for the Child

Persons responsible for the child include:

  • A parent who is the biological or adoptive mother or father of a child
  • A person exercising custodial control and supervision or an agency that has assumed the role and responsibility of a parent or guardian for the child but does not necessarily have legal custody of the child
Exceptions

A parent or other person exercising custodial control or supervision of the child who is legitimately practicing his or her religious beliefs shall not be considered a negligent parent solely because of failure to provide specified medical treatment for a child for that reason alone. This exception shall not preclude a court from ordering necessary medical services for a child.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence and abuse’ means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

If a person commits a third or subsequent offense of assault in the fourth degree under § 508.030 within 5 years, and the relationship between the perpetrator and the victim in each of the offenses meets the definition of family member or member of an unmarried couple, as defined in § 403.720, then the person may be convicted of a Class D felony.

Persons Included in the Definition

‘Family member’ means a spouse, including a former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim.

‘Member of an unmarried couple’ means each member of an unmarried couple that allegedly has a child in common, any children of that couple, or members of an unmarried couple who are living together or have formerly lived together.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Any person who knows or has reasonable cause to believe that a child is abused or neglected shall immediately make an oral or written report, by telephone or otherwise.

A mandated reporter shall file a written report within 48 hours of the original report, if requested.

Content of Reports

The written report shall contain:

  • The names and addresses of the child and the child’s parents or other persons exercising control or supervision over the child
  • The child’s age
  • The nature and extent of the child’s alleged dependency, neglect, or abuse, including any previous charges of dependency, neglect, or abuse to the child or any siblings
  • The name and address of the person allegedly responsible for the abuse or neglect
  • Any other information that the reporter believes may be helpful
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Any physician attending a pregnant woman may perform a screening for alcohol or substance dependency or abuse, including a comprehensive history of such behavior. Any physician may administer a toxicology test to a mother under the physician’s care within 8 hours after she has delivered a baby to determine whether there is evidence that she has ingested alcohol or a controlled substance or if she has obstetrical complications that are a medical indication of possible use of any such substance for a nonmedical purpose.

Any physician attending a mother may administer to each newborn infant born to that mother a toxicology test to determine whether there is evidence of prenatal exposure to alcohol or a controlled substance, if the attending person has reason to believe, based on a medical assessment of either patient, that the mother used any such substance for a nonmedical purpose during the pregnancy.

The circumstances surrounding any positive toxicology finding shall be evaluated by the attending person to determine if abuse or neglect of the infant, as defined under § 600.020(1), has occurred and whether investigation by the Cabinet for Health and Family Services is necessary.

No prenatal screening for alcohol or other substance abuse or positive toxicology finding shall be used as prosecutorial evidence. No person shall conduct or cause to be conducted any toxicological test pursuant to this section on any pregnant woman without first informing her of the purpose of the test.

Agency Receiving the Reports

Reports may be made to a local law enforcement agency, the Department of Kentucky State Police, the Cabinet for Health and Family Services or its designated representative, the Commonwealth attorney, or the county attorney.

Initial Screening Decisions

Based upon the allegation in the report, the cabinet shall immediately make an initial determination as to the risk of harm and immediate safety of the child.

In regulation: Cabinet staff shall attempt to elicit from the reporter as much information as possible about the child’s circumstances. If a report does not meet the criteria for investigation or family-in-need-of-services assessment, the cabinet shall not accept the report for investigation or assessment but shall refer the caller to a community resource that may meet family needs and keep a record of the report.

Agency Conducting the Assessment/Investigation

If the report alleges abuse or neglect by someone other than a parent, guardian, or person exercising custodial control or supervision, the cabinet shall immediately notify the Commonwealth or county attorney and the local law enforcement agency or the State police.

Assessment/Investigation Procedures

Based upon the level of risk determined, the cabinet shall investigate the allegation or accept the report for an assessment of family needs and, if appropriate, may provide or make referral to any community-based services necessary to reduce risk to the child and to provide family support. A report of sexual abuse shall be considered high risk and shall not be referred to any other community agency.

In regulation: An initial determination is conducted to evaluate risk factors to determine immediate safety and risk of harm in order to decide whether to proceed with an investigation or a family-in-need-of-services assessment.

Based upon the initial determination that moderate to high risk factors exist, an investigation is conducted to collect information and evaluate risk factors to determine if a child has been abused or neglected or is dependent. When a moderate or high risk of harm is not present, a family-in-need-of-services assessment is conducted to collect information and evaluate risk factors in order to determine strengths and needs of a family.

Timeframes for Completing Investigations

The cabinet shall, within 72 hours, exclusive of weekends and holidays, make a written report to the Commonwealth’s or county attorney and the local law enforcement agency or the State Police concerning the action that has been taken on the investigation.

In regulation: Based upon an accepted report of child abuse, neglect, or dependency, the cabinet shall make an initial determination as to the immediate safety and risk of harm to a child. The following timeframes apply:

  • If the report indicates imminent danger, the investigation shall be initiated within 1 hour.
  • If the report indicates nonimminent danger of physical abuse, efforts shall be made to have face-to-face contact with the child and family within 24 hours.
  • If the report indicates nonimminent danger, not involving physical abuse, efforts shall be made to have face-to-face contact with the child and family within 48 hours.
  • An investigation or an assessment shall be initiated within 48 hours within a report of dependency if a child is not in imminent danger.
Classification of Reports

Reports shall be classified as follows:

  • A report shall be ‘substantiated’ when there is:
    • An admission of abuse, neglect, or dependency by the person responsible
    • A judicial finding of child abuse, neglect, or dependency
    • A preponderance of evidence that abuse, neglect, or dependency was committed by the person alleged to be responsible
  • A report shall be ‘unsubstantiated’ when there is insufficient evidence, indicators, or justification present for substantiation of abuse, neglect, or dependency.

Parental Drug Use as Child Abuse

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Current Through April 2015

The Cabinet for Health and Family Services shall, as often as necessary, publish a list of the five most frequently abused substances, including alcohol, by pregnant women in the Commonwealth. Any physician and any other person legally permitted to engage in attendance upon a pregnant woman in this State may perform a screening for alcohol or substance dependency or abuse, including a comprehensive history of such behavior. Any physician may administer a toxicology test to a pregnant woman under the physician’s care within 8 hours after delivery to determine whether there is evidence that she has ingested alcohol, a controlled substance, or a substance identified on the list provided by the cabinet, or if the woman has obstetrical complications that are a medical indication of possible use of any such substance for a nonmedical purpose.

Any physician or person legally permitted to engage in attendance upon a pregnant woman may administer to each newborn infant born under that person’s care a toxicology test to determine whether there is evidence of prenatal exposure to alcohol, a controlled substance, or a substance identified on the list provided by the cabinet, if the attending person has reason to believe, based on a medical assessment of the mother or the infant, that the mother used any such substance for a nonmedical purpose during the pregnancy.

The circumstances surrounding any positive toxicology finding shall be evaluated by the attending person to determine if abuse or neglect of the infant, as defined under § 600.020(1), has occurred and whether investigation by the cabinet is necessary.

No prenatal screening for alcohol or other substance abuse or positive toxicology finding shall be used as prosecutorial evidence.

No person shall conduct or cause to be conducted any toxicological test pursuant to this section on any pregnant woman without first informing the pregnant woman of the purpose of the test.

‘Abused or neglected child’ means a child whose health or welfare is harmed or threatened with harm when his or her parent, guardian, person in a position of authority or special trust, or other person exercising custodial control or supervision of the child, engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse.

A person is guilty of controlled substance endangerment to a child in the fourth degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child is not injured as a result of the commission of the offense.

Controlled substance endangerment to a child in the fourth degree is a Class D felony.

A person is guilty of controlled substance endangerment to a child in the second degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child receives serious physical injury as a result of the commission of the offense.

Controlled substance endangerment to a child in the second degree is a Class B felony.

A person is guilty of controlled substance endangerment to a child in the third degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child receives physical injury as a result of the commission of the offense.

Controlled substance endangerment to a child in the third degree is a Class C felony.

A person is guilty of controlled substance endangerment to a child in the first degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child dies as a result of the commission of the offense.

Controlled substance endangerment to a child in the first degree is a Class A felony.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

If the court determines, as a result of a temporary removal hearing, that further proceedings are required, the court shall advise the child and his or her parent or other person exercising custodial control or supervision of his or her right to appointment of separate counsel.

The court shall appoint counsel for the child to be paid for by the Finance and Administration Cabinet. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet for Health and Family Services, of the order appointing counsel.

The court may, in the interest of justice, appoint a court-appointed special advocate (CASA) volunteer to represent the best interests of the child. The clerk of the court shall arrange for service on all parties, including the local representative of the Cabinet of Health and Family Services, of the order appointing the CASA volunteer.

The Use of Court-Appointed Special Advocates (CASAs)

Local CASA programs shall comply with the National CASA Association and Kentucky CASA Association Standards for Programs. Local programs shall ensure that CASA volunteers are adequately supervised by providing at least one supervisory staff person for every 30 CASA volunteers appointed by the court. Program requirements include:

  • CASA volunteers shall, as far as practicable, represent the socioeconomic, racial, and ethnic composition of the area served.
  • CASA volunteers may be removed by the court for nonparticipation or other cause.
  • All written CASA reports shall become part of the record of the child maintained by the Cabinet of Health and Family Services.
  • Employees of the cabinet shall not become volunteers or employees of the CASA program.
  • Each CASA volunteer shall take an oath, administered by a member of the Court of Justice, to keep confidential all information related to the appointed case except in conferring with or reports to the court, parties to the case, the cabinet, the Citizen Foster Care Review Board, others designated by the court, and as provided by law.
  • CASA volunteers shall be appointed by the presiding judge to represent the best interests of the child, subject to judicial discretion, and only after confirmation from the director of the local CASA program that the CASA volunteer has been properly screened and trained.
Qualifications/Training

Counsel for the child shall document participation in training on the role of counsel that includes training in early childhood, child, and adolescent development.

A CASA volunteer shall meet the following minimum requirements:

  • Be at least age 21
  • Be of good moral character
  • Complete a written application providing the names of at least three references
  • Submit to a personal interview with program staff
  • Submit to a criminal record check
  • Submit to a check of the child abuse and adult protection registry maintained by the Cabinet of Health and Family Services

If found acceptable, the applicant shall receive a minimum of 30 hours of initial training and take an oath of confidentiality administered by a family court judge or a district judge.

Specific Duties

The CASA volunteer shall:

  • Attend all court hearings
  • Submit a written report and recommendation to the judge for consideration in determining the best interests of the child at the dispositional hearing, dispositional review hearings, other hearings as requested by the court, and at least one report every 6 months for as long as the case is assigned to the CASA volunteer
  • Monitor the case by visiting the child as often as necessary to observe whether the child’s essential needs are being met and whether court orders are actually being carried out
  • Participate in any treatment planning conferences and reviews involving the child to assess whether reasonable efforts are being made to provide services to the child and family and determine the appropriateness and progress of the child’s permanent plan
  • Advocate a prompt, thorough review of the case if the child’s circumstances warrant the attention of the court
  • Interview parties involved in the case, including interviewing and observing the child
  • Maintain complete written records about the case
  • Report any incidents of child or adult abuse or neglect to the appropriate authorities and to the program director
  • Remain actively involved in the case until dismissed from the case by the program director or judge with competent jurisdiction, or when an adoption proceeding is finalized
  • Return all case-related materials, including, but not limited to, written notes, court reports, and agency documents, to the program director upon the request of the program director
  • Work with the cabinet representatives to advocate the best interests of the child
How the Representative Is Compensated

Counsel for the child shall be paid for by the Finance and Administration Cabinet. The fee to be fixed by the court shall not exceed $500. However, if the action has final disposition in the District Court, the fee shall not exceed $250.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

For each child placed in the custody of the cabinet by an order of commitment, the cabinet shall file a case permanency plan for the child with the court and send a copy to the Administrative Office of the Courts Citizen Foster Care Review Board Program as soon as the plan is prepared, but no later than 30 days after the effective date of the order.

If a child remains in the temporary custody of the cabinet for longer than 45 days and if a request is submitted by the Administrative Office of the Courts Citizen Foster Care Review Board Program, the cabinet shall provide a copy of the case permanency plan for the child.

Who May Participate in the Case Planning Process

The cabinet must file a case permanency plan for each child placed in the custody of the cabinet.

In regulation: As part of the case planning process, the cabinet will work with the family and other involved parties to identify conditions within a family that may cause the threat of harm to a child and that need to be changed and the services necessary to bring about familial changes in order to facilitate a child’s safety and well-being in the home environment.

Contents of a Case Plan

The case permanency plan shall include, but need not be limited to:

  • A concise statement of the reasons why the child is in the custody of the cabinet
  • The actions that have been taken with regard to the child
  • The proposed actions that may be taken with regard to the child during the next 6 months and during the entire duration of the time the child is in the custody of the cabinet
  • Contemplated placements for the child
  • If the child is placed outside of the home, reasons why the child cannot be protected adequately in the home, the harms the child may suffer if left in the home, factors that may indicate when the child can be returned to the home, and efforts the cabinet or others are making to return the child to the home
  • If the child is placed outside of the home, the steps that the cabinet will take to minimize the harm to the child as a result, both at the time of removal and on a long-term basis
  • A description of the type of home or child care facility in which the child is to be placed or has been placed, and why the placement is appropriate for the child
  • If the placement is outside of the child’s county of residence, documentation that no closer placement is appropriate or available, and why the placement was chosen
  • A description of the services to be provided for the child and his or her family to facilitate the return of the child to his or her own home or to another permanent placement
  • A list of objectives and specific tasks, together with specific timeframes for each task, that the parents have agreed to assume, including a schedule of regular visits with the child
  • A projected schedule of time intervals by which each of the services, objectives, and tasks outlined in the plan should be accomplished and a schedule of time intervals that have already been accomplished or are in the process of accomplishment
  • If the child is to remain at home, reasons why he or she cannot be placed in foster care or why such care is not needed

Concurrent Planning for Permanency for Children

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Current Through November 2012

‘Concurrent planning’ means the cabinet simultaneously plans for:

  • The return of a child in the custody of the cabinet to the child’s parent
  • Another permanency goal for the child if return to parent is not achieved within 15 of the last 22 months, in accordance with 42 U.S.C. § 671(a)(16)

Concurrent planning shall be considered during development of the case permanency plan and at the 6-month case review.

Upon notice from any emergency medical services provider or hospital staff that a newborn infant has been abandoned at a hospital, the Cabinet for Health and Family Services shall immediately seek an order for emergency custody of the infant.

Upon the infant’s release from the hospital, the cabinet shall place the child in a foster home approved by the cabinet to provide concurrent planning placement services. As used in this paragraph, ‘concurrent planning placement services’ means the foster family shall work with the cabinet on reunification with the birth family, if known, and shall seek to adopt the infant if reunification cannot be accomplished.

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:

  • No later than 12 months after the child has entered foster care
  • Every 12 months thereafter as long as the child remains in placement
  • Within 30 days after a determination is made that reasonable efforts to reunify are not required

The local citizen foster care review board shall review the case of each child placed in the custody of the cabinet by an order of temporary custody or commitment by the court. The review shall occur at least once every 6 months until the child is no longer in the custody of the cabinet or until an adoption proceeding becomes final.

Persons Entitled to Attend Hearings

The following persons shall be notified of the hearing:

  • The child’s parents
  • The foster parents
  • Any preadoptive parent
  • Any relative providing care for the child
  • The attorney for the parent
  • The attorney or court-appointed special advocate for the child
  • The foster care review board member assigned to the case

The child’s parent, foster parent, preadoptive parent, and relative providing care to the child shall have the right to be heard. The attorney for the parent, attorney for the child, or court-appointed special advocate, if deemed appropriate by the court, may present any evidence relevant to the determination of a permanency goal for the child.

Notice of the local citizen foster care review board review and the right to attend and participate in the review shall be provided to the child’s parents, if parental rights have not been terminated or surrendered; the parent’s attorney; the guardian ad litem, the attorney for the child, or both; the foster parents; the prospective adoptive parent; the relative providing care for the child; and the child who is a party to the proceeding.

Determinations Made at Hearings

The court shall review the care and progress of the child since the last permanency hearing, including the following:

  • How long the child has been committed to the cabinet
  • The services and assistance provided to the parent since the last hearing and the results achieved
  • The efforts and progress of the child’s parent since the last hearing, including the number and dates of parental visits and the extent, quality, and frequency of the parent’s communications with the child
  • Familial and institutional barriers to returning the child to the home
  • Recommendations of services needed to make the transition from out-of-home care to independent living for children who have reached age 16
  • An evaluation of the child’s current placement and services provided to the child
  • Recommendations for services required to end the commitment of the child to the cabinet, to return the child home, or to facilitate another permanent placement
  • Recommendations for the permanency goal for the child

During each 6-month review, the local citizen foster care review board shall review:

  • The status of the child and his or her placement as shown through the case permanency plan, case record, and case progress reports
  • The efforts or adjustment the parent has made in his or her circumstances, conduct, or conditions to make it in the child’s best interests to return home within a time considering the age of the child
  • The efforts of the cabinet to locate and provide services to the parents of the child
  • The efforts of the cabinet and other agencies to facilitate the return of the child home or to find an alternative permanent placement if reunion with the parent is not feasible
Permanency Options

The court shall determine whether the child shall be:

  • Returned to the parent
  • Placed for adoption
  • Placed with a permanent custodian
  • Placed in another planned permanent living arrangement other than those listed above when there is a compelling reason that it is in the best interests of the child

Determining the Best Interests of the Child

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Current Through March 2016

Evidence of the following circumstances, if relevant, shall be considered by the court in all proceedings in which the court is required to render decisions in the best interests of the child:

  • Mental illness or an intellectual disability of the parent, as attested to by a qualified mental health professional, that renders the parent unable to care for the immediate and ongoing needs of the child
  • Acts of abuse or neglect toward any child
  • Alcohol and other drug abuse that results in an incapacity by the parent or caregiver to provide essential care and protection for the child
  • A finding of domestic violence and abuse, whether or not committed in the presence of the child
  • Any other crime committed by a parent that results in the death or permanent physical or mental disability of a member of that parent’s family or household
  • The existence of any guardianship or conservatorship of the parent pursuant to a determination or disability or partial disability

In determining the best interests of the child, the court may consider the effectiveness of rehabilitative efforts made by the parent or caregiver intended to address circumstances in this section.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may involuntarily terminate all parental rights if it is shown by clear and convincing evidence that:

  • The child has been found to be an abused or neglected child, as defined in § 600.020(1).
  • The parent has been convicted of physical or sexual abuse or neglect of any child, and physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated.
  • Termination would be in the best interests of the child.

No termination of parental rights shall be ordered unless the court also finds by clear and convincing evidence the existence of one or more of the following grounds:

  • The parent has abandoned the child for a period of no less than 90 days.
  • The parent has inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury.
  • The parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm.
  • The parent has been convicted of a felony that involved the infliction of serious physical injury to any child.
  • The parent, for not less than 6 months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child, and there is no reasonable expectation of improvement in parental care and protection.
  • The parent has caused or allowed the child to be sexually abused or exploited.
  • The parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education for the child’s well-being, and there is no reasonable expectation of significant improvement in the parent’s conduct in the immediately foreseeable future.
  • The parent’s parental rights to another child have been involuntarily terminated, and:
    • The child named in the present termination action was born subsequent to or during the pendency of the previous termination.
    • The conditions or factors that were the basis for the previous termination finding have not been corrected.
  • The parent has been convicted of causing or contributing to the death of another child as a result of physical or sexual abuse or neglect.
  • The child has been in foster care for 15 of the most recent 22 months preceding the filing of the petition to terminate parental rights.

In determining the best interests of the child and the existence of a ground for termination, the court shall consider the following factors:

  • Mental illness or mental retardation of the parent, as certified by a qualified mental health professional, that renders the parent consistently unable to care for the immediate and ongoing physical or psychological needs of the child for extended periods of time
  • Acts of abuse or neglect toward any child in the family
  • If the child has been placed with the cabinet, whether the cabinet has, prior to the filing of the petition, made reasonable efforts to reunite the child with the parents unless one or more circumstances for not requiring reasonable efforts have been substantiated in a written finding by the court
  • The efforts and adjustments the parent has made in his or her circumstances, conduct, or conditions to make it in the child’s best interests to return home within a reasonable period of time
  • The physical, emotional, and mental health of the child and the prospects for the improvement of the child’s welfare if termination is ordered
  • The payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so
Circumstances That Are Exceptions to Termination of Parental Rights

If the parent proves by a preponderance of evidence that the child will not continue to be an abused or neglected child if returned to the parent, the court, in its discretion, may determine not to terminate parental rights.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A newborn infant may be surrendered to a safe haven provider. The term ‘newborn infant’ means an infant who is medically determined to be less than 72 hours old.

Who May Relinquish the Infant

A newborn infant may be surrendered by a parent or any person who leaves the infant with a safe haven provider and expresses an intent to leave the infant and not return.

Who May Receive the Infant

Safe haven providers include hospitals, emergency medical services providers, police stations, and fire stations.

Responsibilities of the Safe Haven Provider

Any emergency medical services provider, police officer, or firefighter who accepts physical custody of a newborn infant shall immediately arrange for the infant to be taken to the nearest hospital emergency room and shall have implied consent to any and all appropriate medical treatment.

Every hospital that offers emergency services shall admit and provide all necessary medical care, diagnostic tests, and medical treatment to any newborn infant brought to the hospital when the identity of the parents is unknown.

Upon admittance, the physician or hospital administrator shall immediately contact the local office of the Department for Community Based Services. The Department for Community Based Services shall immediately seek an emergency custody order in accordance with § 620.350.

Every emergency room shall make available materials to gather health and medical information concerning the infant and the parents. The materials shall be offered to the person leaving the newborn infant, and it shall be clearly stated that acceptance is completely voluntary and that completion of the materials may be done anonymously. The provisions of this section shall not apply when indicators of child physical abuse or child neglect are present.

Immunity for the Provider

Any person performing medical care, diagnostic testing, or medical treatment shall be immune from criminal or civil liability for having performed the act. Nothing in this subsection shall limit liability for negligence.

Protection for Relinquishing Parent

A parent who surrenders a newborn infant shall have the right to remain anonymous and not be pursued and shall not be considered to have abandoned or endangered the newborn infant.

No child protective services investigation or assessment shall be initiated regarding the abandonment of an infant. The provisions of this subsection shall not apply when indicators of child physical abuse or child neglect are present.

Effect on Parental Rights

By placing a newborn infant in the manner described in this section, the parent:

  • Waives the right to notification required by subsequent court proceedings until such time as a claim of parental rights is made
  • Waives legal standing to make a claim of action against any person who accepts physical custody of the newborn infant

Upon the infant’s release from the hospital, the cabinet shall place the child in a foster home to provide concurrent planning placement services. ‘Concurrent planning placement services’ means the foster family shall work with the cabinet on reunification with the birth family, if known, and shall seek to adopt the infant if reunification cannot be accomplished.

At the temporary removal hearing, the court may place temporary custody with the cabinet for a minimum of 30 days. During that time, the cabinet shall request assistance from law enforcement officials to investigate through the Missing Child Information Center and other national resources to ensure that the infant is not a missing child.

As soon as practicable following the 30-day placement period, the cabinet shall file a petition with the court seeking the involuntary termination of parental rights of the unknown parents. If a claim of parental rights is made at any time prior to the court order terminating rights, the court may hold the action for involuntary termination of parental rights in abeyance for no longer than 90 days.

A hearing shall be conducted within 10 days of the assertion of parental rights. The court may order genetic testing to establish maternity or paternity at the expense of the claimant. The cabinet shall conduct a child protective services investigation or assessment and home evaluation to develop recommendations for the court.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘de facto custodian’ means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of 6 months or more if the child is under age 3 and for a period of 1 year or more if the child is age 3 or older or has been placed by the Cabinet for Health and Family Services.

In regulation: The term ‘caretaker relative’ means a relative with whom the child is, or shall be, placed by the cabinet and who is seeking to qualify as a kinship caregiver. A ‘kinship caregiver’ is the qualified caregiver relative of a child with whom the child is placed by the cabinet as an alternative to foster care.

Purpose of Guardianship

The permanency goal for a child in the custody of the cabinet shall be permanent relative placement if:

  • Return to the parent is not in the child’s best interests.
  • A relative who does not pursue adoption or legal guardianship is able to provide a permanent home for the child.

The permanency goal for a child in the custody of the cabinet shall be legal guardianship if the cabinet determines that:

  • Return to the parent or adoption is not in the child’s best interests.
  • There is an identified adult willing to seek legal guardianship of this child.
  • Legal guardianship by the identified adult is in the child’s best interests.
A Guardian’s Rights and Responsibilities

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

Qualifying the Guardian

The caregiver relative of the child and each adult member of the household shall undergo a criminal records check and a child abuse and neglect check conducted by the cabinet. Each adolescent household member of the caregiver relative’s home shall undergo a child abuse and neglect check.

The caregiver relative and each household member shall agree to undergo a relative home evaluation. During a relative home evaluation, the cabinet shall consider the caregiver relative’s understanding of the impact that familial abuse, neglect, or substance abuse may have on a child and the child’s extended family and their willingness and ability to:

  • Protect the child from abuse or neglect
  • Assume permanent custody
  • Participate in the child’s case permanency plan
  • Access transportation, telephone, medical services, first aid supplies, and school
  • Provide full-time care
  • Accommodate for the child within the home, including:
    • Providing for the child’s sleeping and eating
    • Maintaining adequate heat and ventilation in the home
    • Using active smoke detectors in the home
    • Assuring the child’s inaccessibility to medication, alcoholic beverages, poisonous substances, cleaning materials, ammunition, firearms, and unsupervised contact with a birth parent
Procedures for Establishing Guardianship

The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:

  • The wishes of the child’s parent and any de facto custodian
  • The wishes of the child
  • The interaction of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interests
  • The child’s adjustment to his or her home, school, and community
  • The mental and physical health of all individuals involved
  • Information, records, and evidence of domestic violence
  • The extent to which the child has been cared for, nurtured, and supported by any de facto custodian
  • The intent of the parents in placing the child with a de facto custodian
  • The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence
Contents of a Guardianship Order

Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this section.

Modification/Revocation of Guardianship

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

Eligibility for Guardianship Subsidy

To the extent funds are available, the cabinet may consider a child for initial eligibility in the kinship care program if the cabinet:

  • Determines that the child is at risk of removal from the child’s home with the child’s biological or adoptive parent and would otherwise be placed in foster care, or is in the custody of the cabinet and residing in foster care due to:
    • A cabinet investigation that resulted in a substantiation of abuse or neglect within 120 calendar days of placement in the home of the caregiver relative and prior to April 1, 2013
    • The death of both parents
  • Places the child with a caregiver relative prior to April 1, 2013, due to abuse or neglect or the death of both parents

Kinship care program benefits shall be available to a child who was placed by the cabinet with a nonparental relative in accordance with this administrative regulation and whose initial eligibility determination for the kinship care program took place prior to April 1, 2013.

Links to Agency Policies

Kentucky Administrative Regulations, 922 KAR 1:130. Kinship Care Program

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

In placing a child, the cabinet shall use the least restrictive and appropriate placement available. Preference shall be given to available and qualified relatives of a child for custody placement.

Requirements for Placement with Relatives

Before a child can be placed in the home of a relative caregiver, a criminal background check of the relative and all adult household members must be completed.

To the extent that funds are available, the cabinet may establish a program for kinship care that provides a more permanent placement with a qualified relative for a child who would otherwise be placed in foster care.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

A relative is a person related to the child through blood, marriage, or adoption, including a stepparent, grandparent, sister, brother, aunt, uncle, great-grandparent, great-aunt, or great-uncle.

Requirements for Adoption by Relatives

The adoption of a child by a relative does not require placement by an agency or the permission of the secretary, as other adoptions do. Before a child can be placed in the home, the secretary will require a criminal background check of the relative and all adult household members.

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

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

Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of ordinary diligence and care by the department to utilize all preventive and reunification services that are available to the community and necessary to enable to child to live safely at home.

When Reasonable Efforts Are Required

Reunification services are remedial services that are designed to:

  • Strengthen the family unit
  • Secure reunification of the family and child, where appropriate, as quickly as practicable
  • Prevent the future removal of the child from the family

When the court is petitioned to remove or continue the removal of a child from the custody of his parent or other person exercising custodial control or supervision, the court first shall consider whether the child may be reasonably protected against the alleged dependency, neglect, or abuse by alternatives less restrictive than removal. Such alternatives may include, but shall not be limited to, the provision of medical, educational, psychiatric, psychological, social work, counseling, day care, or homemaking services with monitoring wherever necessary by the Cabinet for Health and Family Services or other appropriate agency. When the court specifically finds that such alternatives are adequate to reasonably protect the child against the alleged dependency, neglect, or abuse, the court shall not order the removal or continued removal of the child.

If the court orders the removal or continues the removal of the child, services provided to the parent and the child shall be designed to promote the protection of the child and the return of the child safely to the child’s home as soon as possible. The cabinet shall develop a treatment plan for each child designed to meet the needs of the child.

When Reasonable Efforts Are NOT Required

Reasonable efforts shall not be required if a court determines that:

  • The parent has subjected the child to aggravated circumstances, including any of the following:
    • The parent has not had contact with the child for more than 90 days.
    • The parent is incarcerated for at least 1 year, will be unavailable to care for the child, and there is no appropriate relative to care for the child.
    • The parent has sexually abused the child and refused available treatment.
    • The parent has engaged in abuse of the child that required removal two or more times in the last 2 years.
    • The parent has caused the child serious physical injury.
  • The parent has been convicted of having caused the death of another child of the parent.
  • The parent has committed a felony assault that resulted in serious bodily injury to the child or another child of the parent.
  • The parent had his or her parental rights to another child terminated involuntarily.
  • The parent has engaged in a pattern of conduct due to alcohol or drug abuse that has rendered the parent incapable of caring for the immediate and ongoing needs of the child, and has refused or failed to complete a treatment plan.
  • The parent has a mental illness or retardation that places the child at substantial risk of harm even if services were provided to the parent for 12 months.
  • The parent has sexually abused the child or is required to register on a sex offender registry under 42 U.S.C. § 16913, the Adam Walsh Child Protection and Safety Act of 2006.
  • Other circumstances make reasonable efforts inconsistent with the best interests of the child and the permanency plan for the child.

Standby Guardianship

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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.

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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