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

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

Maine

 

Click Here for Maine Policy

Child Witnesses to Domestic Violence

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

Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (587 KB) of this publication.

Current Through February 2016

Physical Abuse

‘Abuse or neglect’ means a threat to a child’s health or welfare by physical, mental, or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs, or lack of protection from these, or failure to ensure compliance with school attendance requirements under Title 20-A, § 3272(2)(B), or § 5051-A(1)(C), by a person responsible for the child.

‘Jeopardy to health or welfare’ or ‘jeopardy’ means serious abuse or neglect, as evidenced by serious harm or threat of serious harm.

‘Serious harm’ means serious injury. ‘Serious injury’ means serious physical injury or impairment.

Neglect

‘Abuse or neglect’ means a threat to a child’s health or welfare by deprivation of essential needs or lack of protection by a person responsible for the child.

‘Jeopardy to health or welfare’ or ‘jeopardy’ means serious abuse or neglect as evidenced by:

  • Deprivation of adequate food, clothing, shelter, supervision, care, or education when the child is at least age 7 and has not completed grade 6
  • Deprivation of necessary health care when the deprivation places the child in danger of serious harm
  • Abandonment of the child or absence of any person responsible for the child that creates a threat of serious harm
  • The end of voluntary placement, when the imminent return of the child to his or her custodian causes a threat of serious harm
Sexual Abuse/Exploitation

‘Abuse or neglect’ means a threat to a child’s health or welfare by sexual abuse or exploitation, including under Title 17-A, §§ 282 [sexual exploitation of minor], 852 [aggravated sex trafficking], 853 [sex trafficking], and 855 [patronizing prostitution of a minor], by a person responsible for the child.

‘Serious harm’ includes sexual abuse or exploitation.

Emotional Abuse

The term ‘abuse or neglect’ includes a threat to a child’s health or welfare by mental or emotional injury or impairment by a person responsible for the child.

‘Serious harm’ includes serious mental or emotional injury or impairment that now or in the future is likely to be evidenced by serious mental, behavioral, or personality disorder, including severe anxiety, depression, withdrawal, untoward aggressive behavior, seriously delayed development, or similar serious dysfunctional behavior.

Abandonment

Citation: Ann. Stat. Tit. 22, § 4002
‘Abandonment’ means any conduct on the part of the parent that shows an intent to forgo parental duties or relinquish parental claims. The intent may be evidenced by:

  • Failure to communicate meaningfully or to maintain regular visitation with the child for a period of at least 6 months
  • Failure to participate in any plan or program designed to reunite the parent with the child
  • Deserting the child without affording means of identifying the child and his or her parent or custodian
  • Failure to respond to notice of child protective proceedings
  • Any other conduct indicating an intent to forgo parental duties or relinquish parental claims

‘Jeopardy to health or welfare’ or ‘jeopardy’ includes abandonment of the child or absence of any person responsible for the child that creates a threat of serious harm.

Standards for Reporting

Citation: Ann. Stat. Tit. 22, § 4011-A
A report is required when a mandatory reporter knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

Persons Responsible for the Child

The term ‘parent’ means a natural or adoptive parent, unless parental rights have been terminated.

A ‘person responsible for the child’ means a person with responsibility for a child’s health or welfare, whether in the child’s home or another home or facility that, as part of its function, provides for care of the child. This includes the child’s custodian.

Exceptions

A child shall not be considered to be abused or neglected, in jeopardy of health or welfare, or in danger of serious harm solely because treatment is by spiritual means by an accredited practitioner of a recognized religious organization.

Definitions of Domestic Violence

To better understand this issue and to view it across States, download the PDF (533 KB) of this publication.

Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the occurrence of the following acts between family or household members or dating partners or by a family or household member or dating partner upon a minor child of a family or household member or dating partner:

  • Attempting to cause or causing bodily injury or offensive physical contact, including sexual assaults
  • Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing, or tormenting behavior
  • Compelling a person by force, threat of force, or intimidation to engage in conduct from which the person has a right or privilege to abstain or to abstain from conduct in which the person has a right to engage
  • Knowingly restricting substantially the movements of another person without that person’s consent or other lawful authority by:
    • Removing that person from that person’s residence, place of business, or school
    • Moving that person a substantial distance from the vicinity where that person was found
    • Confining that person for a substantial period either in the place where the restriction commences or in a place to which that person has been moved
    • Communicating to a person a threat to commit, or to cause to be committed, a crime of violence dangerous to human life against the person to whom the communication is made or another, and the natural and probable consequence of the threat, whether or not that consequence in fact occurs, is to place the person to whom the threat is communicated or the person against whom the threat is made in reasonable fear that the crime will be committed
    • Repeatedly and without reasonable cause following the plaintiff or being at or in the vicinity of the plaintiff’s home, school, business, or place of employment
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person is guilty of ‘domestic violence assault’ if the person commits an act of assault, and the victim is a family or household member as defined in title 19-A, § 4002.

A person is guilty of ‘domestic violence criminal threatening‘ if the person commits an act of criminal threatening, and the victim is a family or household member.

A person is guilty of ‘domestic violence terrorizing‘ if the person commits an act of terrorizing, and the victim is a family or household member.

A person is guilty of ‘domestic violence stalking‘ if the person commits an act of stalking, and the victim is a family or household member.

A person is guilty of ‘domestic violence reckless conduct‘ if the person commits an act of reckless conduct, and the victim is a family or household member.

Persons Included in the Definition

‘Family or household members’ means:

  • Spouses or domestic partners and former spouses or former domestic partners
  • Individuals presently or formerly living together as spouses
  • Natural parents of the same child
  • Adult household members related by consanguinity or affinity
  • Minor children of a household member when the defendant is an adult household member

For the purposes of title 15, § 1023(4)(B-1); this chapter; and title 17-A, §§ 15, 207-A, 209-A, 210-B, 210-C, 211-A, 1201, 1202, and 1253 only, the term includes individuals presently or formerly living together and individuals who are or were sexual partners. Holding oneself out to be a spouse is not necessary to constitute ‘living as spouses.’

For purposes of this subsection, ‘domestic partners’ means two unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.

‘Dating partners’ means individuals currently or formerly involved in dating each other, whether or not the individuals are or were sexual partners.

Immunity for Reporters of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (481 KB) of this publication.

Current Through March 2015

A person, including an agent of the department, participating in good faith in reporting under the reporting laws or participating in a related child protection investigation or proceeding, including, but not limited to, a multidisciplinary team, out-of-home abuse investigating team, or other investigating or treatment team, is immune from any criminal or civil liability for the act of reporting or participating in the investigation or proceeding.

Good faith does not include instances when a false report is made and the person knows the report is false. Nothing in this section may be construed to bar criminal or civil action regarding perjury or regarding the abuse or neglect that led to a report, investigation, or proceeding.

A person participating in good faith in taking photographs or x-rays pursuant to the reporting laws is immune from civil liability for invasion of privacy that might otherwise result from these actions.

In a proceeding regarding immunity from liability, there shall be a rebuttable presumption of good faith.

Making and Screening Reports of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (849 KB) of this publication.

Current Through February 2013

Individual Responsibility to Report

A mandated reporter shall immediately report or cause a report to be made to the Department of Human Services when he or she knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

Any person may make a report if that person knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

Reports regarding abuse or neglect must be made immediately by telephone to the department and must be followed by a written report within 48 hours if requested by the department.

Hospitals, medical personnel, and law enforcement personnel may submit emergency reports through password-protected email submissions. A faxed report also may be accepted when preceded by a telephone call informing the department of the incoming fax transmission.

Content of Reports

The reports shall include the following information, if known:

  • The name and address of the child and the persons responsible for the child’s care or custody
  • The child’s age and sex
  • The nature and extent of the abuse or neglect, including a description of any injuries and the explanation given for them
  • A description of sexual abuse or exploitation, if applicable
  • Family composition
  • Any evidence of prior abuse of the child or any siblings
  • The source of report, the person making the report, his or her occupation, and contact information
  • Any action taken by the reporter, including a description of photographs or x-rays taken
  • Any other information that the reporter believes may be helpful
Reporting Suspicious Deaths

A mandated reporter shall immediately report or cause a report to be made to the department when the he or she knows or has reasonable cause to suspect that a suspicious child death has occurred.

When, while acting in a professional capacity, a mandated reporter has reasonable cause to suspect that a suspicious child death has been caused by a person not responsible for the child, he or she immediately shall report or cause a report to be made to the appropriate district attorney’s office.

Any person may make a report if that person knows or has reasonable cause to suspect that there has been a suspicious child death.

‘Suspicious child death’ means the death of a child under circumstances in which there is reasonable cause to suspect that abuse or neglect was a cause of or factor contributing to the child’s death.

Reporting Substance-Exposed Infants

If a health-care provider involved in the delivery or care of an infant knows or has reasonable cause to suspect that the infant has been affected by illegal substance abuse or is suffering from withdrawal symptoms resulting from prenatal drug exposure, whether or not the prenatal exposure was to legal or illegal drugs, the provider shall notify the department. The report must be made in the same manner as reports of abuse or neglect.

The department shall act to protect newborn infants identified as being affected by illegal substance abuse or suffering from withdrawal symptoms resulting from prenatal drug exposure, whether or not the prenatal exposure was to legal or illegal drugs, regardless of whether or not the infant is abused or neglected. The department shall:

  • Receive reports of infants who may be affected by illegal substance abuse or suffering from prenatal drug exposure
  • Promptly investigate all reports to determine whether each infant reported is affected by an illegal substance
  • Determine whether or not each infant reported is affected by illegal substance abuse or suffers from withdrawal symptoms resulting from prenatal drug exposure
  • Determine whether or not the infant is abused or neglected and, if so, determine the degree of harm or threatened harm in each case
  • For each infant whom the department determines to be affected by illegal substance abuse or to be suffering from withdrawal symptoms resulting from prenatal drug exposure, develop, with the assistance of any health-care provider involved in the mother’s or the child’s medical or mental health care, a plan for the safe care of the infant and, in appropriate cases, refer the child or mother or both to a social service agency or voluntary substance abuse prevention service
Agency Receiving the Reports

Mandated reporters must submit reports to the Department of Human Services.

When, while acting in a professional capacity, a mandated reporter knows or has reasonable cause to suspect that a child has been abused or neglected by a person not responsible for the child, he or she immediately shall report or cause a report to be made to the appropriate district attorney’s office.

Initial Screening Decisions

All calls that relate to suspected child abuse and/or neglect will be immediately routed to the Child Protective Intake Unit. The Intake Unit will determine if the report is appropriate. The intake worker will gather facts from the reporter regarding:

  • The identity and location of the parents, children, and relative resources
  • The nature of suspected abuse or neglect and the impact on the child
  • The reporter’s actions taken thus far, if any
  • Other persons who may have direct knowledge and how to contact them

If the information is not sufficient to determine whether the report is appropriate or inappropriate, the worker may, with supervisor approval, contact at least one professional person, if available, whom the worker believes will have direct knowledge of the child’s current condition. The intake worker also will review previous child welfare history regarding the family and the alleged abuser(s).

The worker will analyze the information to determine if the report indicates that there is immediate risk of serious harm. If it appears that the child is in immediate risk of serious harm, the worker will contact the intake supervisor immediately and the intake supervisor will review the report immediately and notify the appropriate district office supervisor.

Agency Conducting the Assessment/Investigation

The department shall act to protect abused and neglected children, and children in circumstances that present a substantial risk of abuse and neglect to prevent further abuse and neglect, to enhance the welfare of these children and their families, and to preserve family life wherever possible. The department shall:

  • Receive reports of abuse and neglect and suspicious child deaths
  • Promptly investigate all abuse and neglect cases and suspicious child deaths coming to its attention

An investigation under this paragraph is subject to and may not interfere with the authority and responsibility of the attorney general to investigate and prosecute homicides.

Assessment/Investigation Procedures

The process of assessment begins with the first contact with or about a family and continues throughout the department’s involvement with the family. The assessment policy focuses on family strengths and needs. It focuses on assessing the signs of safety, risk, and danger and their impact on child safety, as well as assessing for child abuse and neglect types. The policy promotes family engagement and inclusion in a team approach to planning and intervention, with child safety first and foremost.

A child protection assessment is a timely and time-limited process of gathering critical individual, family, and environmental information in order to determine:

  • If a child has been abused or neglected and how severely
  • The impact of the abuse and neglect on the child
  • Signs of safety, risk, and danger
  • How likely it is for a child to experience abuse and neglect within the next 6 months
  • Caregiver strengths and needs related to child safety
  • If this is a family in need of child protective services
  • Whether a plan should be developed to assist the family in keeping the children safe
Timeframes for Completing Investigations

A decision whether to assign for child protective services assessment, refer to contract agency for assessment, or screen out should be made within 24 hours of receiving a report. This decision may be delayed only by the need for collateral contacts in order to better understand the circumstances of the child.

The department commits to seeing alleged child abuse/neglect victims within 72 hours of approving the report or sooner–even immediately–if a more rapid response time is indicated by relevant information in the report.

Classification of Reports

The department shall determine in each case whether or not a child has been harmed and the degree of harm or threatened harm by a person responsible for the care of that child by deciding whether allegations are unsubstantiated, indicated, or substantiated. Each allegation must be considered separately and may result in a combination of findings.

In regulation: Reports may be classified as follows:

  • ‘Substantiated’ means that, by a preponderance of the evidence, a parent or caregiver has caused and/or is likely to cause high severity child abuse and neglect. This person is considered a danger to children.
  • ‘Indicated’ means that, by a preponderance of the evidence, a parent or caregiver has caused and/or is likely to cause low/moderate severity child abuse. Signs of risk also may be present.
  • ‘Unsubstantiated’ means that, by a preponderance of the evidence, a parent or caregiver did not abuse or neglect a child. However, signs of risk may be present.

Parental Drug Use as Child Abuse

To better understand this issue and to view it across States, download the PDF (554 KB) of this publication.

Current Through April 2015

A health-care provider involved in the delivery or care of an infant who the provider knows or has reasonable cause to suspect has been born affected by illegal substance abuse or is suffering from withdrawal symptoms resulting from prenatal drug exposure, whether or not the prenatal exposure was to legal or illegal drugs, shall notify the Department of Health and Human Services of that condition in the infant. The report required by this subsection must be made in the same manner as reports of abuse or neglect required by this subchapter.

This section, and any notification made pursuant to this section, may not be construed to establish a definition of ‘abuse’ or ‘neglect.’

This section, and any notification made pursuant to this section, may not be construed to require prosecution for any illegal action, including, but not limited to, the act of exposing a fetus to drugs or other substances.

The department shall act to protect abused and neglected children and children in circumstances that present a substantial risk of abuse and neglect, to prevent further abuse and neglect, to enhance the welfare of these children and their families, and to preserve family life wherever possible. The department shall:

  • If, after investigation, the department does not file a child protection petition under § 4032 but does open a case to provide services to the family to alleviate child abuse and neglect in the home, assign a caseworker, who shall:
    • Provide information about rehabilitation and other services that may be available to assist the family
    • Develop with the family a written child and family plan that identifies the problems in the family and the services needed to address those problems; describes responsibilities for completing the services, including, but not limited to, payment for services, transportation, and child care services and responsibilities for seeking out and participating in services; and states the names, addresses, and telephone numbers of any relatives or family friends known to the department or parent to be available as resources to the family
  • File a child protection petition under § 4032 if, after investigation, the department determines that a child is in immediate risk of serious harm or in jeopardy as defined in this chapter

The department shall act to protect infants born identified as being affected by illegal substance abuse, demonstrating withdrawal symptoms resulting from prenatal drug exposure whether the prenatal exposure was to legal or illegal drugs, or having fetal alcohol spectrum disorders, regardless of whether the infant is abused or neglected. The department shall:

  • Receive notifications of infants who may be affected by illegal substance abuse or demonstrating withdrawal symptoms resulting from prenatal drug exposure or who have fetal alcohol spectrum disorders
  • Investigate promptly notifications received of infants born who may be affected by illegal substance abuse or demonstrating withdrawal symptoms resulting from prenatal drug exposure or who have fetal alcohol spectrum disorders as determined to be necessary by the department to protect the infant
  • Determine whether each infant for whom the department conducts an investigation is affected by illegal substance abuse, demonstrates withdrawal symptoms resulting from prenatal drug exposure, or has fetal alcohol spectrum disorders
  • Determine whether the infant for whom the department conducts an investigation is abused or neglected and, if so, determine the degree of harm or threatened harm in each case
  • For each infant whom the department determines to be affected by illegal substance abuse, to be demonstrating withdrawal symptoms resulting from prenatal drug exposure, or to have fetal alcohol spectrum disorders, develop, with the assistance of any health-care provider involved in the mother’s or the child’s medical or mental health care, a plan for the safe care of the infant and, in appropriate cases, refer the child, mother, or both to a social service agency or voluntary substance abuse prevention service
  • For each infant whom the department determines to be abused or neglected, comply with § 4004(2)(E)-(F).

Representation of Children in Child Abuse and Neglect Proceedings

To better understand this issue and to view it across States, download the PDF (806 KB) of this publication.

Current Through August 2014

Making The Appointment

In every child protection proceeding except a request for a preliminary protection order under § 4034 or a petition for a medical treatment order under § 4071, but including hearings on those orders, the court shall appoint a guardian ad litem (GAL) for the child. The appointment must be made as soon as possible after the proceeding is initiated. The term GAL is inclusive of lay court-appointed special advocates (CASA).

The GAL or the child may request the court to appoint legal counsel for the child.

The Use of Court-Appointed Special Advocates (CASAs)

There is established within the Administrative Office of the Courts of the Judicial Department the Court Appointed Special Advocate Program to provide volunteer lay persons to serve as CASAs or GALs in child abuse and neglect cases.

The director of the Court Appointed Special Advocate Program shall recruit the services of qualified persons to serve as volunteer CASAs.

Qualifications/Training

GALs appointed on or after March 1, 2000, must meet the qualifications established by the Supreme Judicial Court.

Specific Duties

The GAL shall act in pursuit of the best interests of the child. He or she must be given access to all reports and records relevant to the case and investigate to ascertain the facts. The investigation must include, when possible and appropriate, the following:

  • Review of relevant mental health records and materials
  • Review of relevant medical records
  • Review of relevant school records and other pertinent materials
  • Interviews with the child with or without other persons present
  • Interviews with parents, foster parents, teachers, caseworkers, and other persons who have been involved in caring for or treating the child

The GAL shall have face-to-face contact with the child in the child’s home or foster home within 7 days of appointment and at least once every 3 months thereafter. The GAL shall report to the court and all parties in writing at 6-month intervals regarding his or her activities on behalf of the child and recommendations concerning the manner in which the court should proceed in the best interests of the child. The court may provide an opportunity for the child to address the court personally if the child requests to do so or if the GAL believes it is in the child’s best interests.

The GAL:

  • May subpoena, examine, and cross-examine witnesses and shall make a recommendation to the court
  • Shall make a written report of the investigation, findings, and recommendations and shall provide a copy of the report to each of the parties reasonably in advance of the hearing and to the court
  • Shall make the wishes of the child known to the court if the child has expressed his or her wishes, regardless of the recommendation of the GAL

The GAL or the child may request the court to appoint legal counsel for the child. The District Court shall pay reasonable costs and expenses of the child’s legal counsel.

How the Representative Is Compensated

The GAL’s reasonable costs and expenses must be paid by the District Court.

The volunteer CASAs are considered employees of the State only for the purposes of the Maine Tort Claims Act and are not entitled to receive compensation, but are reimbursed for their actual, necessary, and reasonable expenses incurred in the performance of their duties, consistent with policies established by the Administrative Office of the Courts.

Case Planning for Families Involved With Child Welfare Agencies

To better understand this issue and to view it across States, download the PDF (811 KB) of this publication.

Current Through April 2014

When Case Plans Are Required

When a child is considered to have entered foster care, a plan for reunification and rehabilitation of the family must be developed.

Who May Participate in the Case Planning Process

The Department of Health and Human Services shall develop a rehabilitation and reunification plan as provided in this subparagraph. In developing the rehabilitation and reunification plan, the department shall make good faith efforts to seek the participation of the parent.

Contents of a Case Plan

Information that must be included in developing the plan includes the problems that present a risk of harm to the child, the services needed to address those problems, provisions to ensure the safety of the child while the parent engages in services, a means to measure the extent to which progress has been made, and visitation that protects the child’s physical and emotional well-being.

The rehabilitation and reunification plan must include the following:

  • The reasons for the removal of the child from the home
  • The changes that are necessary to eliminate jeopardy to the child while in the care of a parent
  • Rehabilitation services that will be provided and must be completed satisfactorily prior to the child’s returning home
  • Services that must be provided or made available to assist the parent in rehabilitating and reuniting with the child, as appropriate to the child and family, including, but not limited to, reasonable transportation for the parent for visits and services, child care, housing assistance, assistance with transportation to and from required services, and other services that support reunification
  • A schedule of and conditions for visits between the child and the parent designed to provide the parent and child time together in settings that provide a parent-child interaction as positive as can practicably be achieved while ensuring the emotional and physical well-being of the child when visits are not detrimental to the child’s best interests
  • Any use of kinship support, including, but not limited to, placement, supervision of visitation, in-home support, or respite care
  • A reasonable time schedule for proposed reunification, reasonably calculated to meet the child’s needs
  • A statement of the financial responsibilities of the parent and the department during the reunification process

Court Hearings for the Permanent Placement of Children

To better understand this issue and to view it across States, download the PDF (772 KB) of this publication.

Current Through January 2016

Schedule of Hearings

Case reviews shall be held at least once every 6 months.

A permanency hearing shall be held:

  • Within 12 months of the time the child has entered foster care and every 12 months thereafter while the child remains under court jurisdiction
  • Within 30 days if reunification efforts are ordered to cease
Persons Entitled to Attend Hearings

Notice of hearing shall be provided to:

  • All parties to the initial proceeding including the child’s parent or custodian and guardian ad litem
  • The foster parents
  • The preadoptive parents
  • Any relatives providing care for the child

The foster parent, preadoptive parent, and relative providing care are entitled to an opportunity to be heard, but they are not parties to the proceeding.

Determinations Made at Hearings

After a hearing, the court shall make written findings that determine:

  • The safety of the child in the child’s placement
  • The continuing necessity for and appropriateness of the child’s placement
  • The effect of a change in custody on the child
  • The extent of the parties’ compliance with the case plan and the extent of progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care
  • A likely date by which the child may be returned home and safely maintained in the home or placed for adoption or legal guardianship
  • If the child is age 16 or older, whether or not the child is receiving instruction to aid the child in independent living
Permanency Options

The permanency plan must determine whether and when, if applicable, the child will be:

  • Returned to a parent
  • Placed for adoption
  • Cared for by a permanency guardian
  • Placed with a fit and willing relative
  • Placed in another planned permanent living arrangement if there is a compelling reason for determining that another permanency option would not be in the best interests of the child

In the case of a child who is age 16 or older, the permanency plan must determine the services needed to assist the child to make the transition from foster care to independent living.

The court shall consider the wishes of a child, in a manner appropriate to the age of the child, in making a determination under this section.

Determining the Best Interests of the Child

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

Current Through March 2016

In deciding to terminate parental rights, the court shall consider the best interests of the child; the needs of the child, including the child’s age; the child’s attachments to relevant persons; periods of attachment and separation; the child’s ability to integrate into a substitute placement or back into the parent’s home; and the child’s physical and emotional needs.

The court shall consider, but is not bound by, the wishes of a child age 12 or older in making an order under this section.

Recognizing that the health and safety of children must be of paramount concern and that the right to family integrity is limited by the right of children to be protected from abuse and neglect, and recognizing also that uncertainty and instability are possible in extended foster home or institutional living, it is the intent of the Legislature that this chapter:

  • Authorize the department to protect and assist abused and neglected children, children in circumstances that present a substantial risk of abuse and neglect, and their families
  • Provide that children will be taken from the custody of their parents only where failure to do so would jeopardize their health or welfare
  • Give family rehabilitation and reunification priority as a means for protecting the welfare of children, but prevent needless delay for permanent plans for children when rehabilitation and reunification are not possible
  • Place children who are taken from the custody of their parents with an adult relative, when possible
  • Promote the early establishment of permanent plans for the care and custody of children who cannot be returned to their family

Grounds for Involuntary Termination of Parental Rights

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

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may order termination of parental rights if the court finds, based on clear and convincing evidence, that termination is in the best interests of the child, and:

  • The parent is unwilling or unable to protect the child from jeopardy, and these circumstances are unlikely to change within a reasonable time.
  • The parent has been unwilling or unable to take responsibility for the child within a time that is reasonably calculated to meet the child’s needs.
  • The child has been abandoned.
  • The parent has failed to make a good faith effort to rehabilitate and reunify with the child.

The court may presume that the parent is unwilling or unable to protect the child if:

  • The parent has acted toward a child in a manner that is heinous or abhorrent to society.
  • The parent has been convicted of any of the following, and the victim was a child for whom the parent was responsible:
    • Murder, felony murder, or manslaughter
    • Aiding or soliciting suicide or aggravated assault
    • Rape, gross sexual misconduct or gross sexual assault, sexual abuse of minors, or incest
    • Kidnapping
    • Promotion of prostitution
  • The child has been placed in the legal custody or care of the department, the parent has a chronic substance abuse problem, and the parent’s prognosis indicates that the child will not be able to return to the custody of the parent within a reasonable period of time.
  • The child has been placed in the legal custody or care of the department, the court has previously terminated parental rights to another child who is a member of the same family, and the parent has failed to remedy the conditions that led to the termination.
  • The child has been placed in the legal custody or care of the department for at least 9 months, and the parent has been offered or received services to correct the situation but has refused or made no significant effort to correct the situation.
Circumstances That Are Exceptions to Termination of Parental Rights

In deciding to terminate parental rights, the court shall consider the best interests of the child, the needs of the child, including the child’s age, the child’s attachments to relevant persons, periods of attachments and separation, the child’s ability to integrate into a substitute placement or back into the parent’s home, and the child’s physical and emotional needs.

The court shall consider, but is not bound by, the wishes of a child age 12 or older in making an order under this section.

Circumstances Allowing Reinstatement of Parental Rights

The department may petition the court to reinstate the parental rights of a parent whose parental rights have been terminated. The petition must state:

  • The reasons for the termination
  • A substantial change in circumstances of the parent that demonstrate the parent has the capacity and willingness to parent the child
  • The parent’s consent to the reinstatement
  • The willingness of the child for the reinstatement

The petition must be accompanied by a permanency plan that provides for the health and safety of the child and outlines the transition services to the family and the supervision required by the department for placing the child in the home on a trial basis.

Upon the filing of a petition, the court shall hold a case management conference to review the permanency plan filed by the department. The court may order reinstatement of parental rights if it finds, by clear and convincing evidence, that:

  • The child has been in the custody of the department for at least 12 months after parental rights have been terminated.
  • The child has lived for at least 3 months in the home of the parent after the petition for reinstatement has been filed.
  • The parent consents to the reinstatement of parental rights.
  • If the child is age 12 or older, the child consents to the reinstatement of parental rights.
  • Reinstatement of parental rights is in the best interests of the child.

In determining whether to reinstate parental rights, the court shall consider the age and maturity of the child, the child’s ability to express a preference, the child’s ability to integrate back into the home of the parent whose rights were terminated, the ability of the parent whose rights were terminated to meet the child’s physical and emotional needs, the extent that the parent whose rights were terminated has remedied the circumstances that resulted in the termination of parental rights, and the likelihood of future risk to the child.

Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

A child who is younger than 31 days old may be relinquished.

Who May Relinquish the Infant

The child may be delivered to a safe haven provider by any person.

Who May Receive the Infant

The child may be delivered to a safe haven provider. The term ‘safe haven provider’ means:

  • A law enforcement officer
  • Staff at a medical emergency room
  • A medical services provider, including, but not limited to a:
    • Physician
    • Nurse
    • Podiatrist
    • Optometrist
    • Chiropractor
    • Physical therapist
    • Dentist
    • Psychologist
    • Physician’s assistant
    • Emergency medical services person
  • A hospital staff member
Responsibilities of the Safe Haven Provider


A person who voluntarily delivers a child less than 31 days of age to a safe haven provider and who does not express an intent to return for the child may be requested to provide information helpful to the welfare of the child. The person who accepts a child may not detain the person delivering the child to obtain information.

A safe haven provider who accepts a child shall promptly notify the Department of Human Services of the delivery of the child, transfer the child to the department at the earliest opportunity, and provide to the department all information provided by the person delivering the child to the safe haven provider. The department shall establish guidelines to assist safe haven providers concerning procedures when a child is delivered to a safe haven provider.

Immunity for the Provider

A person or entity who accepts a child or provides temporary custody of a child is not subject to civil, criminal, or administrative liability for accepting the child or providing temporary custody of the child in the good-faith belief that the action is required or authorized by this section. This subsection does not affect liability for personal injury or wrongful death, including but not limited to injury resulting from medical malpractice.

Protection for Relinquishing Parent

All personally identifiable information provided by the person delivering the child to a safe haven provider is confidential and may not be disclosed by the safe haven provider to anyone except to the extent necessary to provide temporary custody of the child until the child is transferred to the department and except as otherwise provided by court order. All health-care or other information obtained by a safe haven provider in providing temporary custody of the child may also be provided to the department upon request.

It is an affirmative defense to a prosecution for child abandonment if, at the time the offense occurred:

  • The child was younger than 31 days old.
  • The child was delivered to a safe haven provider.
Effect on Parental Rights

This issue is not addressed in the statutes reviewed.

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘guardian’ means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.

In policy: ‘Relative placement’ refers to the use of relatives as a temporary placement for children in the custody of the Department of Health and Human Services, or comparable departments in another State through the Interstate Compact on the Placement of Children, while the children/parent(s) are engaged in the rehabilitation/reunification process.

‘Kinship care’ is the placement of a child with relatives on a permanent basis once the court or the family has determined that the child will not be returning to the home and care of the parent(s). Temporary relative placements can evolve into kinship care.

Purpose of Guardianship

Permanency guardianship provides a permanency option to children who might otherwise remain in foster care until the age of majority. The State has developed a comprehensive program to provide relatives and other individuals the opportunity to become the permanency guardians of children that are in the custody of the State or of Tribal authorities in the State of Maine. Through the provision of a financial subsidy, the State seeks to promote the utilization of guardianship and improved permanency outcomes for children in out-of-home placement.

A Guardian’s Rights and Responsibilities

A permanency guardian has all of the powers and duties of a guardian of a child pursuant to Title 18-A, § 5-209.

A guardian of a child has the powers and responsibilities of a parent who has not been deprived of custody of the child, except that a guardian is not legally obligated to provide from the guardian’s own funds for the child and is not liable to third persons by reason of the parental relationship for acts of the child. The duties of the guardian include, but are not limited to:

  • Facilitating the child’s education, social, or other activities
  • Giving or withholding consents or approvals related to medical, health, or other professional care, counsel, treatment, or service for the child
  • Consenting to the marriage or adoption of the child
  • Withholding or withdrawing life-sustaining treatment

A guardian is not liable, by reason of the giving or withholding of consent, for injury to the child resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have so given or withheld consent.

A guardian must report the condition of the child and the child’s estate that has been subject to that guardian’s possession or control, as ordered by court on petition of any person interested in the child’s welfare or as required by court rule.

Qualifying the Guardian

The court may appoint a person to be a permanency guardian only if the court finds that the prospective permanency guardian:

  • Has the ability to provide a safe home for the child
  • Has a close emotional bond with the child and that the child has a close emotional bond with the prospective permanency guardian
  • Is willing and able to make an informed, long-term commitment to the child
  • Has the skills to care for the child
  • Has submitted to having fingerprints taken for the purposes of a national criminal history record check
Procedures for Establishing Guardianship

As part of the permanency plan, the court may appoint a person or persons as guardian of a child, to be known as a permanency guardian.

The court may appoint as guardian any person whose appointment is in the best interests of the child. The court shall appoint a person nominated by the child, if the child is age 14 or older, unless the court finds the appointment contrary to the best interests of the child.

Notice of the time and place of hearing of a petition for the appointment of a guardian of a child is to be given to:

  • The child if he or she is age 14 or older
  • The person who has had the principal care and custody of the child during the 60 days preceding the date of the petition
  • Any living parent of the child

Upon hearing, if the court finds that a qualified person seeks appointment and the welfare and best interests of the child will be served by the appointment, it shall make the appointment.

If, at any time in the proceeding, the court determines that the interests of the child are or may be inadequately represented, it may appoint an attorney to represent the child, giving consideration to the preference of the child if the child is age 14 or older.

Contents of a Guardianship Order

The court shall set forth the basis for determining that the appointment is in the best interests of the child in the order of appointment.

A parent, grandparent, or sibling of a child subject to a permanency guardianship, or to a proceeding to establish a permanency guardianship, may petition the court to determine rights of contact. If the court determines that it is in the best interests of the child, it may order that the parent, grandparent, or sibling of the child has a reasonable right of contact with the child and may specify the type, frequency, duration, and conditions of that contact.

The parents shall pay the permanency guardian child support. If there is an existing child support order or obligation regarding the child, and if the court fails to make a child support order at the time of appointing a permanency guardian, the permanency guardian becomes the obligee under the existing support order or obligation. A copy of the order appointing the permanency guardian is sufficient proof of the permanency guardian’s status as obligee.

Modification/Revocation of Guardianship

Any party to the child protective proceeding may petition to terminate a permanency guardianship and any parent, grandparent, or sibling of the child may petition the court to establish rights of contact with the child. However, a person having once petitioned unsuccessfully to terminate a permanency guardianship or to establish rights of contact may not bring a new petition to terminate the permanency guardianship or to establish rights of contact within 12 months after the end of the previous proceeding, and then only if the petitioner alleges and proves that there has been a substantial change of circumstances regarding the child’s welfare.

The permanency guardianship may be terminated only if the petitioner proves by a preponderance of evidence that the termination is in the best interest of the child.

Resignation of a permanency guardian does not terminate the guardianship until it has been approved by the court. If a permanency guardian resigns, dies, or becomes incapacitated, the court shall hold a judicial review and a permanency planning hearing at the earliest practicable time.

Eligibility for Guardianship Subsidy

Subject to rules adopted to implement this section, the department may provide subsidies for a child who is placed in a permanency guardianship or in a similar status by a Native American Tribe, when reasonable but unsuccessful efforts have been made to place the child without guardianship subsidies and if the child would not be placed in a permanency guardianship without the assistance of the program.

In regulation: The child and permanency guardian are eligible for the guardianship subsidy only if all of the following criteria are met:

  • The child must be in the legal custody of the department or Tribe.
  • Reunification for the child must no longer be a viable permanency option.
  • The child must meet the definition of a special needs child.
  • Permanency guardianship must be considered to be in the best interests of the child by the court.
  • The family must have been studied and approved as meeting the department’s or Tribe’s standards for permanency guardianship either by the department, Tribe, or by a licensed child-placing agency prior to placement in Permanency Guardianship status.

Appointment by the court as a permanency guardian does not establish that the permanency guardian meets the standards for permanency guardianship for purposes of the guardianship subsidy.

Links to Agency Policies

Maine Department of Health and Human Services, Office of Child and Family Services, Kinship Care Policy

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

In the residential placement of a child, the Department of Health and Human Services shall consider giving preference to an adult relative over a nonrelated caregiver.

Requirements for Placement with Relatives

The related caregiver must meet all relevant State child protection standards.

There is a rebuttable presumption that the relative would create a situation of jeopardy for the child if any contact were to be permitted and that contact is not in the best interests of the child if the court finds that the relative:

  • Has been convicted of a sex offense in which the victim was a minor at the time of the offense and the relative was at least 5 years older than the minor at the time of the offense
  • Has been adjudicated as having sexually abused a person who was a minor at the time of the abuse
Requirements for Placement of Siblings

If the court determines that it is reasonable, practicable, and in the best interests of the children involved, the court shall order the custodian of the child who is the subject of the child protection proceeding and any party who is the custodian of a sibling of the child to make the children available for visits with each other. The court may order a schedule and conditions pursuant to which the visits are to occur.

The department shall make reasonable efforts to establish agreements with prospective adoptive parents that provide for reasonable contact between an adoptive child and the child’s siblings when the department believes that the contact will be in the children’s best interests.

In a child protection proceeding, a child may request visiting rights with a sibling from whom the child has been separated as a result of the child protection proceeding.

Relatives Who May Adopt

A blood relative may petition to adopt the child.

Requirements for Adoption by Relatives

If the petitioner is a blood relative of the child, the court may waive the requirement of a home study and report. Each petitioner who is not a biological relative must undergo a State and Federal criminal records check that includes a screening for child abuse cases.

Expense payment limitations do not apply when one of the adoptive parents is a relative.

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

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

Current Through March 2016

What Are Reasonable Efforts

The Department of Health and Human Services shall develop a written rehabilitation plan that includes:

  • Services that must be provided to address the problems in the family that present a risk of harm to the child
  • Provisions to ensure the safety of the child while the parent engages in those services
  • A means to measure the extent to which progress has been made
  • Visitation that protects the child’s physical and emotional well-being
When Reasonable Efforts Are Required

The department shall make reasonable efforts to:

  • Prevent removal of the child from home, unless the court finds the presence of an aggravating factor
  • Rehabilitate and reunify the family, as provided in § 4041(1-A), unless the court has ordered that the department need not commence or may cease reunification
  • Finalize the permanency plan
When Reasonable Efforts Are NOT Required

The court may order that reunification efforts are not required if it finds one of the following:

  • The existence of an aggravating factor
  • That continuation of reunification efforts is inconsistent with the permanency plan for the child

An aggravating factor includes any of the following circumstances with regard to the parent:

  • The parent has subjected a child for whom the parent was responsible to rape, gross sexual misconduct, gross sexual assault, sexual abuse, incest, aggravated assault, kidnapping, promotion of prostitution, abandonment, torture, chronic abuse, or any other treatment that is heinous or abhorrent to society.
  • The parent refused for 6 months to comply with treatment required in a reunification plan with regard to the child.
  • The parent has been convicted of any of the following crimes and the victim of the crime was a child for whom the parent was responsible or was a child who was a member of a household lived in or frequented by the parent:
    • Murder, felony murder, or manslaughter
    • Aiding, conspiring, or soliciting murder or manslaughter
    • Felony assault that results in serious bodily injury
    • Any comparable crime in another jurisdiction
  • The parental rights of the parent to a sibling have been terminated involuntarily.
  • The parent has abandoned the child.

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

CLICK HERE To Ask A Maine CPS Attorney a FREE Question

Ask an Attorney a FREE question about your CPS case in Maine.

Even if there are no questions listed here yet, please go ahead and ask yours. An attorney will be invited to answer questions here soon.

No questions found.