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

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

Louisiana

 

 Louisiana State Law

Louisiana Administrative Code, page 131

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: When the State proves, in addition to the elements of the crime of domestic abuse battery as set forth in § 14:35.3(A), that a minor child age 13 or younger was present at the residence or any other scene at the time of the commission of the offense, additional penalties will apply, as described below.

Consequences

In criminal law: When the circumstances described above apply:

  • The minimum mandatory sentence for a first or second offense shall not be suspended.
  • The minimum mandatory sentence imposed for a third offense shall be 2 years without suspension of sentence.
  • The minimum mandatory sentence imposed for a fourth or subsequent offense shall be 4 years without suspension of sentence.

In civil law: All court costs, attorney fees, costs of enforcement and modifications proceedings, costs of appeals, evaluation fees, and expert witness fees incurred in maintaining or defending any proceeding concerning domestic abuse assistance in accordance with the provisions of this chapter shall be paid by the perpetrator of the domestic violence, including all costs of medical and psychological care for the abused adult or for any of the children, necessitated by the domestic violence.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means any one of the following acts that seriously endanger the physical, mental, or emotional health and safety of the child:

  • The infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person
  • Exploitation or overwork of a child by a parent or any other person, including, but not limited to, commercial sexual exploitation of the child

‘Crime against the child’ means the commission or attempted commission of a crime, including homicide, battery, assault, kidnapping, criminal neglect, contributing to the delinquency or dependency of a minor, the sale of minor children, cruelty to juveniles, or human trafficking.

Neglect

‘Neglect’ means the refusal or unreasonable failure of a parent or caregiver to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, and as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired. Neglect includes prenatal neglect.

‘Prenatal neglect’ means exposure to chronic or severe use of alcohol, the unlawful use of any controlled dangerous substance, or the use of a controlled dangerous substance in a manner not lawfully prescribed that results in symptoms of withdrawal in the newborn or the presence of a controlled substance or a metabolic thereof in the child’s body, blood, urine, or meconium that is not the result of medical treatment; or observable and harmful effects in the child’s physical appearance or functioning.

Sexual Abuse/Exploitation

The term ‘abuse’ includes the involvement of the child in any sexual act with a parent or any other person, or the aiding or toleration by the parent, caregiver, or any other person of the child’s involvement in any of the following:

  • Any sexual act with any other person
  • Pornographic displays
  • Any sexual activity constituting a crime under the laws of this State

‘Commercial sexual exploitation’ means involvement of the child in human trafficking or trafficking of children for sexual purposes, as prohibited by Rev. Stat. §§ 14:46.2 and 46.3, or any prostitution-related offense, as prohibited by Rev. Stat. §§ 81.1, 81.3, 82, 82.1, 82.2, 83, 83.1, 83.2, 83.3, 83.4, 84, 85, 86, 89.2, 104, 105, and 282.

‘Child pornography’ means visual depiction of a child engaged in actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.

A ‘crime against a child’ includes rape, sexual battery, incest, carnal knowledge of a juvenile, indecent behavior with a juvenile, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, a crime against nature, or trafficking of children for sexual purposes.

Emotional Abuse

The term ‘abuse’ includes any act that seriously endangers the mental or emotional health of the child or inflicts mental injury.

Abandonment

Citation: Ch. Code Art. 603
A ‘crime against the child’ includes criminal abandonment of a child.

Standards for Reporting

Citation: Ch. Code Art. 609
A report is required when any mandatory reporter has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse or neglect.

Persons Responsible for the Child

The term ‘caretaker’ [caregiver] means any person legally obligated to provide or secure adequate care for a child, including a parent, tutor, guardian, legal custodian, foster home parent, an employee of a public or private daycare center, operator or employee of a family daycare home, or other person providing a residence for the child.

Exceptions

The inability of a parent or caregiver to provide for a child due to inadequate financial resources shall not, for that reason alone, be considered neglect.

Whenever, in lieu of medical care, a child is being provided treatment in accordance with the tenets of a well-recognized religious method of healing that has a reasonable, proven record of success, the child shall not, for that reason alone, be considered to be neglected or maltreated. Nothing in this section shall prohibit the court from ordering medical services for the child when there is substantial risk of harm to the child’s health or welfare.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Family violence’ includes, but is not limited to, physical or sexual abuse and any offense against the person, as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children. Family violence does not include reasonable acts of self-defense utilized by one parent to protect himself or herself or a child in the family from the family violence of the other parent.

‘Domestic abuse’ includes, but is not limited to, physical or sexual abuse and any offense against the person as defined in chapter 1 of title 14 of the Louisiana Revised Statutes, except negligent injury and defamation, committed by one family or household member against another.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic abuse battery’ is the intentional use of force or violence committed by one household member upon the person of another household member.

Any crime of violence, as defined in Rev. Stat. § 14:2(B), against a person committed by one household member against another household member shall be designated as an act of domestic violence.

The term ‘crime of violence’ means an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. ‘Crimes of violence’ include:

  • Solicitation for murder
  • Murder or manslaughter
  • Battery, aggravated assault, or aggravated assault with a firearm
  • Rape or sexual battery
  • Intentional exposure to the AIDS virus
  • Kidnapping
  • Aggravated arson
  • Aggravated criminal damage to property
  • Burglary or armed robbery
  • Assault by driveby shooting
  • Aggravated crime against nature or incest
  • Illegal use of weapons or dangerous instrumentalities
  • Terrorism
  • Stalking
  • Second degree cruelty to juveniles
  • Trafficking of children for sexual purposes
  • Human trafficking
  • Home invasion
Persons Included in the Definition

In civil law: ‘Family or household member’ means spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, foster children, and any person living in the same residence with the defendant as a spouse, whether married or not, if a child or children also live in the residence, who are seeking protection under this chapter.

In criminal law: ‘Household member’ means:

  • Any person of the opposite sex presently living in the same residence or living in the same residence within 5 years of the occurrence of the domestic abuse battery with the defendant as a spouse, whether married or not
  • Any minor child presently living in the same residence or living in the same residence within 5 years immediately prior to the occurrence of domestic abuse battery
  • Any child of the offender regardless of where the child resides

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

No cause of action shall exist against any:

  • Person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this chapter
  • Caseworker who in good faith conducts an investigation, makes an investigative judgment or disposition, or releases or uses information contained in the central registry for the purpose of protecting a child

Such individuals shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.

This immunity shall not be extended to:

  • Any alleged principal, conspirator, or accessory to an offense involving the abuse or neglect of the child
  • Any person who makes a report known to be false or with reckless disregard for the truth of the report

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child’s death shall submit a report.

If the initial report was made orally, it shall be followed by a written report within 5 days.

Content of Reports

The report shall contain the following information, if known:

  • The name, address, age, sex, and race of the child
  • The nature, extent, and cause of the child’s injuries or endangered condition, including any previous known or suspected abuse of the child or the child’s siblings
  • The names and addresses of the child’s parents or other caregivers
  • The names and ages of all other members of the child’s household
  • The name and address of the reporter
  • An account of how the child came to reporter’s attention
  • Any explanation of the cause of the child’s injury or condition offered by the child, the caregiver, or any other person
  • The number of times the reporter has filed a report on the child or the child’s siblings
  • The person or persons who are thought to have caused or contributed to the child’s condition, if known, and any person named by the child
  • Any other information the reporter believes might be important or relevant
Reporting Suspicious Deaths

Reports of abuse or neglect that were a contributing factor in a child’s death, where the abuser is believed to be a caregiver, a person who maintains an interpersonal dating or engagement relationship with the parent or caregiver, or a person living in the same residence with the parent or caregiver as a spouse whether married or not, shall be made immediately to the department through the designated State child protection reporting hotline telephone number.

The department shall report all cases of child death that involve a suspicion of abuse or neglect as a contributing factor in the child’s death to the local or State law enforcement agency, the office of the district attorney, and the coroner.

Reporting Substance-Exposed Infants

If a physician has cause to believe that a mother of an infant unlawfully used during pregnancy a controlled dangerous substance, the physician shall order a toxicology test upon the infant, without the consent of the infant’s parents or guardian, to determine whether there is evidence of prenatal neglect. If the test results are positive, the physician shall report the results as soon as possible. If the test results are negative, all identifying information shall be obliterated if the record is retained, unless the parent approves the inclusion of identifying information. Positive test results shall not be admissible in a criminal prosecution.

The version below, as amended by Acts 2007, No. 396, § 1, shall not become effective unless and until sufficient funds are appropriated by the legislature for such purposes.

If a physician has cause to believe that a newborn was exposed in utero to an unlawfully used controlled dangerous substance, the physician shall order a toxicology test upon the newborn, without the consent of the newborn’s parents or guardian, to determine whether there is evidence of prenatal neglect. If the test results are positive, the physician shall issue a report, as soon as possible, in accordance with this Article. If the test results are negative, all identifying information shall be obliterated if the record is retained, unless the parent approves the inclusion of identifying information. Positive test results shall not be admissible in a criminal prosecution.

If there are symptoms of withdrawal in the newborn or other observable and harmful effects in his or her physical appearance or functioning that a physician has cause to believe are due to the chronic or severe use of alcohol by the mother during pregnancy, the physician shall issue a report in accordance with this article.

Agency Receiving the Reports

Reports of child abuse or neglect in which the abuser is believed to be a parent or caregiver, a person who maintains an interpersonal dating or engagement relationship with the parent or caregiver, or a person living in the same residence with the parent or caregiver as a spouse, whether married or not, shall be made immediately to the department through the designated State child protection reporting hotline telephone number.

Reports in which the abuse or neglect is believed to be perpetrated by someone other than a caregiver, and the caregiver is not believed to have any responsibility for the abuse or neglect, shall be made immediately to a local or State law enforcement agency. Dual reporting to both the department through the designated State child protection reporting hotline telephone number and the local or State law enforcement agency is permitted.

Any commercial film processor who has knowledge of any film, photograph, videotape, negative, or slide depicting a child under age 17 in an activity that constitutes child pornography shall report immediately to the local law enforcement agency. The reporter shall provide a copy of the film, photograph, videotape, negative, or slide to the agency receiving the report.

Initial Screening Decisions

Upon receiving a report of abuse or neglect of a child who is not in the custody of the State, the local child protection unit of the department shall promptly assign a level of risk to the child based on the information provided by the reporter.

The Department of Children and Family Services shall set priorities for case response and allocate staff resources to cases identified by reporters as presenting immediate substantial risk of harm to children.

In regulation: Reports will be assigned for investigation when the circumstances of the report indicate the reporter has cause to believe:

  • That substantial risk of harm to the child is present and the child’s physical, mental, or emotional health is seriously endangered as a result
  • That abuse or neglect already has occurred

Reports of abuse and/or neglect that provide first-hand information of an injury, or of evidence of an injury to a child, such as personal observation of photograph, names of witnesses, medical reports, or police reports, which cause a reporter to believe that a child has been injured or is at substantial risk of injury through the action or inaction of the child’s caregiver will be investigated.

Agency Conducting the Assessment/Investigation

All reports made to any law enforcement agency involving abuse or neglect in which the child’s parent or caregiver, a person who maintains an interpersonal dating or engagement relationship with the parent or caregiver, or a person living in the same residence with the parent or caregiver as a spouse, whether married or not, is believed responsible shall be promptly communicated to the department in accordance with a written working agreement developed between the local law enforcement agency and child protection unit.

The department shall promptly communicate abuse or neglect cases not involving a parent, caregiver, or occupant of the household to the appropriate law enforcement agency.

Reports involving a felony-grade crime against a child shall be promptly communicated to the appropriate law enforcement authorities as part of the interagency protocols for multidisciplinary investigations of child abuse and neglect.

Assessment/Investigation Procedures

The investigation shall include a preliminary investigation as to the nature, extent, and cause of the abuse or neglect and the identity of the person actually responsible for the child’s condition. This preliminary investigation shall include an interview with the child and his or her parents or other caregiver. The preliminary investigation also shall include an immediate assessment of any existing visitation or custody order or agreement involving the alleged perpetrator and the child.

In lieu of an investigation, reports of low levels of risk may be assessed promptly through interviews with the family to identify needs and available match to community resources. If, during this assessment, it is determined that a child is at immediate substantial risk of harm, the local child protection unit shall promptly conduct or participate in an intensive investigation.

All interviews of the child or his parents conducted in the course of a child protective investigation shall be tape-recorded, if requested by the parent or parents.

Upon determination that there is reason to believe that the child has been abused or neglected, the local child protection unit shall conduct a more intensive investigation.

Timeframes for Completing Investigations

Reports of high and intermediate levels of risk shall be investigated promptly.

In regulation: Reports classified as presenting low risk of immediate substantial harm will be assigned a response time of 24 hours up to 5 calendar days from the date the report was received.

Classification of Reports

After investigation, the local child protection unit shall make one of the following determinations:

  • The child appears to be a child in need of care and immediate removal is necessary for his or her protection from further abuse or neglect.
  • The report appears to be justified in that there is evidence of child abuse or neglect, and:
    • A protective order would eliminate the need for removal of the child in order to protect him or her from further abuse, in which case it may apply for a temporary restraining order or protective order.
    • All pertinent information shall be reported to the district attorney as soon as possible, but in no case more than 30 days after the determination is made.
  • The report is inconclusive in that the evidence tends to support a finding of abuse or neglect, but there is not enough information to confirm a justified report.
  • The report does not appear justified as the evidence does not support a finding of child abuse or neglect.
  • The investigation indicates the report appears to be false and that the reporter knowingly made a false report, in which case all pertinent information shall be forwarded to the district attorney for a determination of whether the evidence supports a finding of a false public report.

Parental Drug Use as Child Abuse

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Current Through April 2015

Cruelty to juveniles is:

  • The intentional or criminally negligent exposure by anyone age 17 or older of any child under age 17 to a clandestine laboratory operation [for the unlawful manufacture of methamphetamine], as defined by Rev. Stat. § 40:983, in a situation where it is foreseeable that the child may be physically harmed
  • The intentional or criminally negligent allowing of any child under age 17 by any person over age 17 to be present during the manufacturing, distribution, or purchasing or attempted manufacturing, distribution, or purchasing of a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Law

Lack of knowledge of the child’s age shall not be a defense. Whoever commits the crime of cruelty to juveniles shall be fined not more than $1,000 or imprisoned with or without hard labor for not more than 10 years, or both.

If a physician has cause to believe that a mother of an infant unlawfully used a controlled dangerous substance during pregnancy, the physician shall order a toxicology test upon the infant, without the consent of the infant’s parents or guardian, to determine whether there is evidence of prenatal neglect. If the test results are positive, the physician shall report the results as soon as possible. If the test results are negative, all identifying information shall be obliterated if the record is retained, unless the parent approves the inclusion of identifying information. Positive test results shall not be admissible in a criminal prosecution.

The version below, as amended by Acts 2007, No. 396, § 1, shall not become effective unless and until sufficient funds are appropriated by the legislature for such purposes.

If a physician has cause to believe that a newborn was exposed in utero to an unlawfully used controlled dangerous substance, the physician shall order a toxicology test upon the newborn, without the consent of the newborn’s parents or guardian, to determine whether there is evidence of prenatal neglect. If the test results are positive, the physician shall issue a report as soon as possible, in accordance with this Article. If the test results are negative, all identifying information shall be obliterated if the record is retained, unless the parent approves the inclusion of identifying information. Positive test results shall not be admissible in a criminal prosecution.

If there are symptoms of withdrawal in the newborn or other observable and harmful effects in his or her physical appearance or functioning that a physician has cause to believe are due to the chronic or severe use of alcohol by the mother during pregnancy, the physician shall issue a report in accordance with this Article.

‘Prenatal neglect’ means the unlawful use of a controlled dangerous substance, as defined by Rev. Stat. § 40:961, et seq., by a mother during pregnancy, that results in symptoms of withdrawal in the infant or the presence of a controlled substance in the infant’s body.

The version below, as amended by Acts 2007, No. 396, § 1, shall not become effective unless and until sufficient funds are appropriated by the legislature for such purposes.

‘Prenatal neglect’ means exposure to chronic or severe use of alcohol or the unlawful use of any controlled dangerous substance, as defined by Rev. Stat. § 40:961, et seq., or in a manner not lawfully prescribed, that results in symptoms of withdrawal in the newborn or the presence of a controlled substance or a metabolic thereof in his or her body, blood, urine, or meconium that is not the result of medical treatment, or observable and harmful effects in his or her physical appearance or functioning.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court shall appoint the program designated for the jurisdiction by the Louisiana Supreme Court to provide qualified, independent counsel for the child at the time the order setting the first court hearing is signed. Neither the child nor anyone purporting to act on his or her behalf may be permitted to waive this right.

The court is authorized in child in need of care proceedings to appoint a court-appointed special advocate (CASA) program to assist the court in fulfilling its duties and responsibilities to children brought into court.

Upon appointment, the CASA program shall designate the individual CASA volunteer for assignment to the child. The CASA volunteer shall have as his or her special duty and responsibility the advocacy of the best interests of the child involved in the juvenile proceeding to which he or she is assigned.

The Use of Court-Appointed Special Advocates (CASAs)

To accomplish the assignment of a CASA volunteer, the court shall issue an order of assignment that shall grant the CASA volunteer the authority to review all relevant documents pursuant to Article 424.6 and to interview all parties and witnesses involved in the proceeding in which he or she is appointed.

Except as otherwise ordered by the court, the appointment of a CASA program for a child shall include subsequent proceedings through permanent placement of the child, including families in need of services or delinquency proceedings.

Qualifications/Training

A CASA program is established in compliance with National CASA Association standards. A CASA volunteer has been trained in accordance with National CASA Association standards and is under the supervision of a CASA program.

The judge of the court will first satisfy himself or herself of the volunteer’s qualifications, training, and ability to serve as a CASA volunteer, including his or her ability to represent and advocate the best interests of children assigned to him or her. No volunteer shall be assigned until a comprehensive criminal background check has been conducted.

All CASA volunteers shall:

  • Be sworn in by a judge of the court
  • Swear or affirm to abide by all laws, regulations, and orders of the court
  • Swear or affirm to advocate what he or she perceives to be in the best interests of the child for whom he or she is assigned in all matters pending before the court

In court rules: Prior to appointment as counsel for children in child abuse and neglect proceedings, an attorney shall have the following qualifications:

  • The attorney shall have completed within the past 2 years a minimum of 8 hours of training or education relevant to child abuse and neglect cases, and/or shall have sufficient knowledge to satisfy the court of the attorney’s qualifications.
  • The attorney shall complete a minimum of 6 hours of approved continuing legal education each calendar year, and shall submit to the Supreme Court documentation of compliance no later than January 31 of the following calendar year.
  • The requisite education shall include relevant law and jurisprudence, child development, child abuse and neglect, and the roles, responsibilities, and duties of independent counsel for children, including the Standards for Representation of Children.
Specific Duties

The child shall be a party to the proceedings, and the attorney for the child shall have the authority to represent the child at all stages of the proceedings. The attorney for the child shall have the authority to take actions, including, but not limited to the following:

  • Accompany the child and be present for all court appearances, school hearings, and other meetings related to the child
  • View and copy the child’s medical, dental, psychological, psychiatric, educational, or counseling records

The purpose of the CASA is to advocate for timely placement of children in permanent, safe, and stable homes.Under the supervision of the CASA program, it shall be the duty of a CASA volunteer to:

  • Provide independent, factual information to the court regarding the children and cases to which they are assigned
  • Advocate on behalf of the children involved in the cases to which they are assigned what they perceive to be in the best interests of the children
  • Monitor proceedings in cases to which they have been assigned and advise and assist the court in its determination of the best interests of the children involved

Regarding any case to which he or she has been assigned, the CASA volunteer:

  • Shall be notified by the court of all court proceedings and hearings of any kind pertaining to the child
  • Shall be notified by the department of all administrative review hearings
  • Shall be entitled to attend all court proceedings and hearings of any kind pertaining to the child
  • May be called as a witness in the proceedings by any party or by the court and may request of the court the opportunity to appear as a witness
  • Shall be given access to all portions of the court record relating to proceedings pertaining to the child and the child’s family

In court rules: Counsel for a child should:

  • Obtain copies of all pleadings and notices
  • Participate in discovery, negotiations, conferences, and hearings
  • Inform other parties and counsel of the attorney’s representation and expectation of reasonable notice of any conferences and hearings and of any changes in circumstances affecting the child and the child’s family
  • Avoid creating and attempt to reduce delays in the proceedings and advocate for timely permanence for the child
  • Advise the child about the case, the child’s rights, the court system, the proceedings, counsel’s role, expectations of the legal process, the risks and benefits of possible courses of action, and other relief
  • Determine the client’s desires and preferences in a developmentally appropriate and culturally sensitive manner
  • Advocate for the desires and expressed preferences of the child and follow the child’s direction throughout the case in a developmentally appropriate manner
  • Develop a theory and strategy for hearings
  • Identify appropriate resources for the child
How the Representative Is Compensated

If the court finds that the parents of the child are financially able, it may order the parents to pay some or all of the costs of the child’s representation by independent counsel.

CASA volunteers serve without compensation and at the pleasure of the court exercising juvenile jurisdiction.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A case plan shall be developed within 60 days after a child enters the custody of a child care agency.

In regulation: Effective April, 1991, a case permanency plan shall be filed with the court when a child enters into custody of the Department of Social Services or into foster care, pursuant to or pending a child in need of care proceeding. The case permanency plan shall be filed no later than 60 days after the child comes into care.

Who May Participate in the Case Planning Process

The custodian shall develop a case plan detailing the custodian’s efforts toward achieving a permanent placement for the child. The health and safety of the child shall be the paramount concern in the development of the case plan.

Any party may file a written response to the case plan as submitted.

Contents of a Case Plan

The case plan shall be designed to achieve placement in the least restrictive, most familylike, and most appropriate setting available, and in close proximity to the parents’ homes, consistent with the best interests and special needs of the child. The health and safety of the child shall be the paramount concern in the development of the case plan.

The case plan shall include at least the following:

  • A description of the type of home or institution in which the child is placed, including a discussion of the child’s health and safety, the appropriateness of the placement, and the reasons why the placement, if a substantial distance from the home of the parents or in a different State, is in the best interests of the child
  • A plan for ensuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate the safe return of the child to his own home or other permanent placement of the child, or both, and address the needs of the child while in foster care, including a plan for visitation
  • A discussion of the appropriateness of the services that have been provided to the child
  • If the child has been committed to the custody of a person other than the parents, a recommendation as to an amount the parents are obligated to contribute for the cost of care and treatment of their child
  • For a child age 15 or older, a written, individualized, and thorough transitional plan, developed in collaboration with the child and any agency, department, or individual assuming his or her custody, care, or responsibility, including:
    • Identifying the programs and services that will be used to assist the child in achieving a successful transition, including but not limited to education, health, permanent connections, living arrangements, and, if appropriate, independent living skills and employment
    • Ensuring that all records in department files relevant to securing needed services for the child are immediately transmitted to the appropriate service provider
  • Documentation of the efforts the agency is making to safely return the child home or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan
  • Assessment of the child’s relationships with his or her parents, grandparents, and siblings, including a plan for ensuring that continuing contact with any relative by blood, adoption, or affinity with whom the child has an established and significant relationship is preserved while the child is in foster care
  • Documentation of the compelling reasons for determining that filing a petition for termination of parental rights would not be in the best interests of the child, when appropriate

For children whose permanent plan is adoption or placement in another permanent home, the documentation shall include child-specific recruitment efforts such as the use of State, regional, and national adoption exchanges, including electronic exchange systems, to facilitate orderly and timely in-State and interstate placements.

For children whose permanent plan is guardianship, the documentation shall include the facts and circumstances supporting guardianship, including the reasons that the plan is in the best interests of the child and that reunification with a parent and adoption are not appropriate permanent plans. The documentation shall also address the suitability and commitment of the proposed guardian to offer a wholesome, stable home for the child throughout minority.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A case review hearing shall be held:

  • Within 3 months of the disposition hearing if the child was removed from the home prior to the hearing
  • Within 6 months of the removal of the child
  • Every 6 months thereafter until the child is permanently placed

A permanency hearing shall be held:

  • Within 30 days of a finding that reunification is not required
  • Within 9 months of the disposition hearing if the child was removed from the home prior to the hearing, but in no case more than 12 months after the removal of the child
  • Every 12 months thereafter until the child is permanently placed
Persons Entitled to Attend Hearings

The following persons may be present at either a case review or permanency hearing:

  • All parties
  • Foster parents
  • Adoptive parents
  • Relatives providing care for the child
  • Authorized officers of the court as designated by the judge
  • Agency representatives as designated by the State
  • The court-appointed special advocate volunteer
  • The witness under examination
Determinations Made at Hearings

The case review shall address the following:

  • The continuing necessity and appropriateness of the placement
  • The extent of compliance with the case plan
  • Extent of progress toward correcting the circumstances necessitating placement in foster care
  • A likely date by which the child may be returned to the home or placed for adoption or guardianship
  • Whether the Department of Social Services has made reasonable efforts to reunify the family or to finalize the child’s placement

At the permanency hearing, the court shall determine:

  • Whether the department has made reasonable efforts to reunify the parent and child or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan
  • If a child is in an out-of-State placement, whether the placement is safe, appropriate, and in the best interests of the child
  • When reunification is determined to be the permanent plan for the child, whether parents understand that it is their obligation to achieve the case plan goals and correct the conditions that require the child to be in care within the time period specified by the court

In the case of a child age 14 or older, the hearing shall include a review of the transitional plan developed with the child and the agency in accordance with Article 675(B)(6). In any permanency hearing for a child whose permanent plan is placement in the least restrictive, most family-like alternative permanent living arrangement, the court or administrative body conducting the hearing shall ask the child about his or her desired permanency outcome.

Permanency Options

The court shall determine the permanent plan for the child that is most appropriate and in the best interests of the child in accordance with the following priorities of placement:

  • Return the child to the legal custody of the parents within a specified time period consistent with the child’s age and need for a safe and permanent home
  • Adoption
  • Placement with a legal guardian
  • Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child
  • Placement in the least restrictive, most family-like alternative permanent living arrangement:
    • The department shall document in the child’s case plan and its report to the court the compelling reason for recommending this plan over the preceding higher-priority alternatives.
    • This permanent plan option may be considered only if the child is age 16 or older.

Determining the Best Interests of the Child

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Current Through March 2016

The purpose of this title is to protect children whose physical or mental health and welfare is substantially at risk of harm by physical abuse, neglect, or exploitation and who may be further threatened by the conduct of others, by providing for the reporting of suspected cases of abuse, exploitation, or neglect of children; by providing for the investigation of such complaints; and by providing, if necessary, for the resolution of child in need of care proceedings in the courts. The proceedings shall be conducted expeditiously to avoid delays in achieving permanency for children. This title is intended to provide the greatest possible protection as promptly as possible for such children. The health, safety, and best interests of the child shall be the paramount concern in all proceedings under this title. This title shall be administered and interpreted to avoid unnecessary interference with family privacy and trauma to the child, and yet, at the same time, authorize the protective and preventive intervention needed for the health, safety, and well-being of children.

The case plan shall be designed to achieve placement in the least restrictive, most family-like, and most appropriate setting available, in close proximity to the parents’ homes, consistent with the best interests and special needs of the child. The health and safety of the child shall be the paramount concern in the development of the case plan.

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 grounds for termination of parental rights are:

  • Conviction of murder of the child’s other parent
  • Unjustified intentional killing of the child’s other parent
  • Misconduct of the parent toward the child, another child of the parent, or any child that constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
    • Murder or unjustified intentional killing
    • Aggravated incest, rape, sodomy, or sexual abuse
    • Torture or starvation
    • A felony that has resulted in serious bodily injury
    • Abuse or neglect that is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement
  • Abuse or neglect after the child is returned to the parent’s care when the child had previously been removed for his or her safety
  • Previous termination of the parent’s parental rights to one or more of the child’s siblings due to neglect or abuse coupled with unsuccessful attempts to rehabilitate the parent
  • Sexual exploitation or abuse
  • Human trafficking when sentenced pursuant to Rev. Stat. § 14:46.2(B)(2) or (3)
  • Abandonment of the child by placing him in the physical custody of a nonparent or the department or by otherwise leaving the child under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
    • For a period of at least 4 months, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
    • As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of 6 consecutive months.
    • As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or her or communicating with him or her for any period of 6 consecutive months.
  • Failure of the parent to substantially comply with a case plan for 1 year or more and no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future
  • Incarceration of the parent for an extended period of time, and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care
  • The relinquishment of an infant pursuant to Chapter 13 of Title XI
  • The commission of a felony rape by the natural parent that resulted in the conception of the child
Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

If a child is in foster care and older than age 15, the child’s counsel or the department may file a motion to restore the parental rights or parental contact with a parent whose rights have been terminated.

The department shall make a diligent effort to locate a parent whose rights may be restored and notify him or her of the effects of the restoration, including the obligation to pay child support. Within 45 days after the date the motion is filed, the department shall submit a confidential report to the court that shall include the following:

  • Changes in the parent’s circumstances
  • Reasons why parental rights were terminated
  • The willingness of the parent to resume contact with the child and to have parental rights restored
  • The willingness of the child to resume contact with the parent and to have parental rights restored
  • The ability and willingness of the parent to be involved in the life of the child and to accept the physical custody of the child
  • Other relevant information

At the hearing, the court may, in the best interests of the child, order one of the following:

  • Allow contact between the parent and child, and if so, under what conditions
  • Restore the parental rights of the parent
  • Place the child in the custody of the parent with or without continuing supervision of the department

If the department, counsel for the child, CASA volunteer, and the parent stipulate that restoration of parental rights or parental contact is in the best interests of the child, the court may, after reviewing the report of the department, enter a judgment to that effect without a hearing.

The restoration of parental rights and placement of the child in the custody of the parent without supervision by the department is considered a permanent placement. Any other disposition by the court shall be made part of the case plan.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

An infant may be relinquished. The term ‘infant’ means a child not previously subjected to abuse or neglect, who is not more than 30 days old as determined within a reasonable degree of medical certainty by an examining physician.

Who May Relinquish the Infant

The terms ‘relinquish’ or ‘relinquishment’ of an infant mean to give possession or control of the infant by a parent to another with the settled intent to forego all parental responsibilities.

If a parent wishes to relinquish his or her infant, he or she may leave the infant in the care of any employee of a designated emergency care facility. If the parent is unable to travel to such a facility, he or she may call 911, and a law enforcement officer or emergency medical service provider shall immediately be dispatched to meet the parent and transport the child to a hospital.

Who May Receive the Infant

The infant may be delivered to a designated emergency care facility, including any:

  • Hospital
  • Public health unit
  • Emergency medical service provider
  • Medical clinic
  • Police station
  • Fire station
  • Pregnancy crisis center
  • Child advocacy center
Responsibilities of the Safe Haven Provider

Every designated emergency care facility shall appoint as its representative one or more employees on duty during regular business hours who is knowledgeable about the requirements of this chapter. In addition, at other times each facility shall designate a representative who can be reached by emergency telephone service.

The Department of Children and Family Services shall create a card that will be supplied to designated emergency care facilities. The card shall be given to the individual relinquishing an infant into the care of a designated emergency care facility. The card shall contain a toll-free number to the department and a section on the card for the designated emergency care facility to provide their address and contact information.

In the event that the relinquishing parent makes contact with the department or the designated emergency care facility, the relinquishing parent shall be asked to voluntarily provide information about any prenatal care and the name of the other parent. The representative shall provide to the parent written information about:

  • How to contact the department should the parent later have questions about the relinquishment or the voluntary medical and genetic history information
  • The availability of counseling services
  • The right of the parent to file a claim and be heard in accordance with articles 1156 and 1157
  • The right of the parent to use the services of the voluntary registry in accordance with chapter 15 of title XII

In the event that an infant is relinquished to a designated emergency care facility other than a hospital, the staff of the facility shall immediately transfer the child to a hospital. The representative shall immediately notify the department of the relinquishment.

Immunity for the Provider

Absent evidence of willful or intentional misconduct or gross negligence in carrying out their responsibilities, the representative and other staff of the designated emergency facility shall be immune from civil and criminal liability in any legal action arising from the examination, testing, care, and treatment of the infant.

Protection for Relinquishing Parent

Relinquishment in accordance with this law is not a criminal act of neglect, abandonment, cruelty, or crime against the child.

Effect on Parental Rights

The department shall take physical custody of the infant within 12 hours of notice that the infant is ready to be discharged from the hospital. The department shall exercise due diligence in attempting to identify and locate any nonrelinquishing parent, including but not limited to performing a missing children search.

Within 30 days after the relinquishment, the parent may seek to reclaim parental rights by filing a motion declaring his or her intention to retain his or her parental rights. The court shall order blood or tissue testing and shall also order the department to immediately conduct a home study of any parent seeking to reclaim his or her rights. A relinquishing parent may reclaim parental rights by proving by clear and convincing evidence that:

  • He or she is the parent of the child.
  • Setting aside the relinquishment and permitting the parent to reclaim the child is in the child’s best interests.

If the court finds that the relinquishment should be set aside and that the parent may reclaim his or her parental rights, then the parent shall also prove that he or she has manifested a substantial commitment to his or her parental responsibilities and is a fit parent of the child. If the court finds that the parent has established parental rights, it may also order the parent to reimburse all or part of the medical expenses incurred for the infant in connection with his or her birth and care.

If a relinquishing parent has not made a timely claim to the child and if no timely claim has been made by a nonrelinquishing father, the court shall, within 45 days after the relinquishment, terminate the rights of the parents.

No action to annul a judgment terminating parental rights shall be brought for any reason after 90 days from its signing or after a decree of adoption has been entered, whichever is earlier.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardianship’ means the judicial placement of a child under the care of a guardian who will have the duty and authority to make decisions in matters having a permanent effect on the life and development of the child, as set forth in article 719.

Purpose of Guardianship

The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interests; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department.

This chapter is intended to ensure that the fundamental needs of children are met and the constitutional rights of all parties are recognized and enforced.

A Guardian’s Rights and Responsibilities

Unless the court specifies otherwise, a guardian shall exercise the rights and responsibilities of legal custody and shall have the authority to consent to the child’s marriage, to consent to his or her enlistment in the armed forces of the United States, and to make other decisions concerning the child, except the right to consent to the child’s adoption.

Qualifying the Guardian

The Department of Children and Family Services shall submit to the court a confidential report of its investigation and evaluation of the home of the proposed guardian. The report shall include all of the following:

  • The moral and financial fitness of the proposed guardian
  • The conditions of the home of the proposed guardian with respect to health, adjustment, and other advantages or disadvantages for the child
  • The physical and mental condition of the child and his or her reaction to the proposed guardianship
  • The plan for the child if the proposed guardian becomes incapable of providing care
Procedures for Establishing Guardianship

After a child has been adjudicated to be in need of care, a motion for guardianship may be filed by the department, parent, or counsel for the child; or the department may submit a case plan along with the case review report to the court and all counsel recommending guardianship.

The motion, case review report, or case plan shall include all of the following:

  • The name and gender of the child, and the date and place of his or her birth
  • A description of the mental and physical health of the child
  • The current placement of the child and when it began
  • The name and address of the proposed guardian and any relationship to the child
  • The name and address of the parents of the child
  • A plain and concise statement of the facts on which the motion, case review report, or case plan for guardianship is sought and why neither adoption nor reunification with a parent is in the best interests of the child

Unless not yet completed, the home study shall be attached to the motion, case review report, or case plan. If not attached, the home study shall be submitted to the court as soon as it is completed.

The petitioner shall have the burden of proving all of the following by clear and convincing evidence:

  • The child has been adjudicated to be in need of care.
  • Neither adoption nor reunification with a parent is in the best interests of the child.
  • The child has resided for at least 6 months with the proposed guardian, unless the court waives the residence requirement for good cause.
  • The proposed guardian is able to provide a safe, stable, and wholesome home for the child for the duration of minority.

If the child is age 12 or older, the court shall solicit and consider his or her wishes in the matter.

The court shall hold a hearing before approving a guardianship and shall, at the conclusion of the hearing, enter a written order that includes the findings upon which the order is based.

Contents of a Guardianship Order

The court may grant the motion and appoint a guardian for the child if the court finds by clear and convincing evidence that the requirements of article 722 have been met and that the proposed guardianship is in the best interests of the child.

The guardianship order shall address the frequency and nature of visitation or contact between the child and his or her parent, as necessary to ensure the health, safety, and best interests of the child. The guardianship order may require the parent to contribute to the support of the child to the extent the court finds the parent is able pursuant to article 685.

The guardianship order continues until the child reaches age 18, unless earlier modified or terminated by the court in accordance with article 724.

Modification/Revocation of Guardianship

The court shall retain jurisdiction to enforce, modify, or terminate a guardianship order until the child reaches age 18. The program representing the child in the child of need of care proceedings pursuant to Children’s Code Article 607 and the program representing the indigent parents in the child in need of care proceedings pursuant to Children’s Code Article 608 shall provide representation in guardianship proceedings.

The department, counsel for the child, the guardian, a parent permitted to intervene under article 707, or the court on its own motion may seek to enforce, modify or terminate a guardianship order. A copy of the motion to modify shall be personally served on the parents, and the court shall promptly notify the programs representing the child and indigent parents, respectively, in child in need of care proceedings.

A guardianship order may be modified or terminated if the court finds by clear and convincing evidence that there has been a substantial and material change in the circumstances of the guardian or child because of any of the following:

  • The guardian no longer wishes to serve or can no longer serve as guardian of the child.
  • Continuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship, or the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.

The court shall hold a hearing before modifying or terminating a guardianship and shall, at the conclusion of the hearing, enter a written order that includes the findings upon which the order is based.

Eligibility for Guardianship Subsidy

The Subsidized Guardianship Program enables the department to make payments to certified relative and fictive kin caregivers on behalf of a child who otherwise might not be able to achieve permanency outside of agency custody because of special needs or other circumstances. Subsidy payments shall be limited to a child for whom guardianship is indicated due to other more permanent options such as reunification with the parents, immediate unsubsidized custody to a relative or other caregiver, or adoption being determined as unfeasible for the child.

The guardianship subsidy applies only:

  • To a child for whom the department holds legal custody
  • To potential caregivers with whom the child had an established familial or emotional relationship prior to entering department custody
  • When the kinship placement provider becomes a certified foster caregiver according to the certification standards of the State
  • When the child remains in the certified kinship placement for at least 6 consecutive months

The granting of a subsidy shall not affect the legal status of the child nor the rights and responsibilities of the guardianship caregivers.

The prospective guardianship family must meet basic foster care certification eligibility requirements in all respects except for the ability to assume complete financial responsibility for the child’s care.

Links to Agency Policies

Louisiana Administrative Code,

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

Unless the best interests of the child requires a different placement, a child who is in need of care shall be placed, pending a continued custody hearing, in accordance with this priority:

  • In the home of a suitable relative who is of the age of majority and with whom the child has been living in a wholesome and stable environment if the relative is willing and able to continue to offer such environment for the child pending an adjudication hearing and if he or she agrees to the safety plan
  • In the home of a suitable relative who is of the age of majority if the relative is willing and able to offer a wholesome and stable environment for the child pending an adjudication hearing and if he or she agrees to the safety plan
  • In the home of a suitable individual who is of the age of majority if he or she is willing and able to offer a wholesome and stable environment for the child pending an adjudication hearing and if he or she agrees to the safety plan
  • In foster care under the supervision of the department until further orders of the court

The Office of Community Services shall establish eligibility standards for becoming a kinship foster parent, including the following:

  • Relatives within at least the second degree to the parent or stepparent of a child who may be related through blood or marriage may be eligible for approval as a kinship foster parent.
  • The kinship foster parent shall be age 21 or older, or if the spouse or partner of the relative is age 21 or older and living in the home, the relative may be between age 18 and 21.
Requirements for Placement with Relatives

When a child has been removed from his or her home and is in the care, custody, or guardianship of the Office of Community Services, the office shall make reasonable attempts to place the child with a relative for kinship foster care. If the relative is approved by the office to provide foster care services, the relative shall be eligible to receive payment for the full foster care rate for the care of the child and any other benefits that might be available to foster parents, whether in money or in service.

A person shall be eligible to become a kinship foster parent only upon the completion of an investigation to ascertain if there is a State or Federal record of criminal history for the prospective kinship foster parent or any other individual residing in the prospective parent’s home.

The Office of Community Services shall determine whether the person is able to care effectively for the child by completing all of the following:

  • Reviewing personal and professional references
  • Observing the kinship foster parent with household members during a home visit
  • Interviewing the kinship foster parent

In emergency situations, relatives and friends of the foster child who have applied to be foster parents and who appear to meet eligibility criteria for such foster homes may be certified by the department for one 90-day period without training.

The department may establish separate minimum training requirements for relatives of a foster child or foster parents certified to care only for a specific child or children in those homes not open to placement of other children. These minimum requirements shall include 10 hours of preservice training, requirements for a criminal records clearance, participation with the department in periodic home visits and legally mandated status reviews, and annual training as prescribed in the child’s service plan at the status review.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

A stepparent, stepgrandparent, great-grandparent, grandparent, or collaterals within the 12th degree may petition to adopt a child.

Requirements for Adoption by Relatives

The relative wishing to adopt must meet all the following conditions:

  • The petitioner must be related to the child by blood, adoption, or affinity through a parent having parental rights.
  • The petitioner is a single person over age 18 or a married person whose spouse is a joint petitioner.
  • The petitioner has had legal or physical custody of the child for at least 6 months prior to filing for adoption.

The sheriff or the Office of State Police, Louisiana Bureau of Criminal Identification and Information, will conduct a records check for all Federal arrests and convictions and all State arrests and convictions in this and any other State in which either of the prospective adoptive parents has been domiciled.

The Department of Social Services will conduct a records check for validated complaints of child abuse or neglect in this or any other State in which either of the prospective adoptive parents has been domiciled since becoming an adult.

The department shall not investigate the proposed intrafamily adoption except upon order of the court.

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of ordinary diligence and care by department caseworkers and supervisors and shall assume the availability of a reasonable program of services to children and their families.

When Reasonable Efforts Are Required

The court shall determine whether the Department of Children and Family Services has made reasonable efforts to prevent or eliminate the need for removal of the child from his or her home and, after removal, to make it possible for the child to return home safely.

The court may authorize, with the consent of the State, continued implementation of a safety plan prior to the adjudication if there are reasonable grounds to believe the child is in need of care and that the continued implementation of the safety plan is necessary for his or her safety and protection. The safety plan shall continue to set forth conditions as determined or agreed upon by the State as necessary for the protection of the child’s health and safety while remaining in the home.

When the child is to be removed from his or her parents’ custody, the court shall determine whether reasonable efforts have been made to prevent removal and what preventive or reunification efforts, or both, were made, and why further efforts could or could not have prevented or shortened the separation of the family.

When Reasonable Efforts Are NOT Required

At any time in a child in need of care proceeding for a child who is in the custody of the department, the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required. The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not required, considering the health and safety of the child and the child’s need for permanency.

Efforts to reunify the parent and child are not required if a court has determined that:

  • The parent has subjected the child to egregious conduct or conditions, including any of the grounds for termination of parental rights pursuant to Article 1015.
  • The parent has committed or attempted to commit murder or manslaughter of another child of the parent or any other child or has aided or abetted, attempted, conspired, or solicited to commit such a murder or manslaughter.
  • The parent has committed a felony that resulted in serious bodily injury to the child, another child of the parent, or any other child.
  • The parent’s parental rights to a sibling have been terminated involuntarily.

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

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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

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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

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9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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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

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7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

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7th Circuit

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

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

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8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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7th Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

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4th 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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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