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

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

Maryland

 

Statutes (look for 5-701)

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means:

  • The physical or mental injury of a child by any parent or other person who has permanent or temporary care, custody, or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed
  • Sexual abuse of a child, whether physical injuries are sustained or not
Neglect

‘Neglect’ means leaving a child unattended or other failure to give proper care and attention to a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of the child under circumstances that indicate:

  • That the child’s health or welfare is harmed or placed at substantial risk of harm
  • Mental injury to the child or a substantial risk of mental injury
Sexual Abuse/Exploitation

‘Sexual abuse’ means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member. ‘Sexual abuse’ includes:

  • Allowing or encouraging a child to engage in:
    • Obscene photography, films, poses, or similar activity
    • Pornographic photography, films, poses, or similar activity
    • Prostitution
  • Human trafficking
  • Incest
  • Rape
  • Sexual offense in any degree
  • Sodomy
  • Unnatural or perverted sexual practices
Emotional Abuse

‘Mental injury’ means the observable, identifiable, and substantial impairment of a child’s mental or psychological ability to function.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Fam. Law § 5-704
A report is required when a mandatory reporter has reason to believe that a child has been subjected to abuse or neglect.

Persons Responsible for the Child

Responsible persons include a parent or other person who provides temporary care, custody, or supervision of the child, including:

  • A family member, including a relative to the child by blood, adoption, or marriage
  • A household member, including a person who lives or is a regular presence in a home of a child at the time of the alleged abuse or neglect
Exceptions

No exceptions are specified in statute.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means any of the following acts:

  • An act that causes serious bodily harm
  • An act that places a person eligible for relief in fear of imminent serious bodily harm
  • Assault in any degree
  • Rape or sexual offense under §§ 3-303 through 3-308 of the Criminal Law Article, or attempted rape or sexual offense in any degree
  • False imprisonment
  • Stalking under § 3-802 of the Criminal Law Article
Defined in Child Abuse Reporting and Child Protection Laws

If the person for whom relief [from domestic violence] is sought is a child, ‘abuse’ also may include abuse of a child, as defined in title 5, subtitle 7 of this article. Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child.

Defined in Criminal Laws

This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

‘Person eligible for relief’ includes:

  • The current or former spouse of the respondent
  • A cohabitant of the respondent
  • A person related to the respondent by blood, marriage, or adoption
  • A parent, stepparent, child, or stepchild of the respondent or the person eligible for relief who resides or resided with the respondent or person eligible for relief for at least 90 days within 1 year before the filing of the petition
  • A vulnerable adult
  • An individual who has a child in common with the respondent

‘Cohabitant’ means a person who has had a sexual relationship with the respondent and resided with the respondent in the home for a period of at least 90 days within 1 year before the filing of the petition.

‘Victim of domestic violence’ means an individual who has received deliberate, severe, and demonstrable physical injury, or is in fear of imminent deliberate, severe, and demonstrable physical injury from a current or former spouse or a current or former cohabitant.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person who makes or participates in making a report of abuse or neglect under §§ 5-704, 5-705, or 5-705.1 or participates in an investigation or a resulting judicial proceeding, shall have immunity from civil liability or criminal penalty.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Notwithstanding any other provision of law, including any law on privileged communications, each mandated reporter, acting in a professional capacity in this State who has reason to believe that a child has been subjected to abuse or neglect, shall make an oral report by telephone or direct communication as soon as possible. A written report shall be made no later than 48 hours after the contact, examination, attention, or treatment that caused the individual to believe that the child had been subjected to abuse or neglect.

Content of Reports

Insofar as is reasonably possible, an individual who makes a report under this section shall include in the report the following information:

  • The name, age, and home address of the child
  • The name and home address of the child’s parent or other person who is responsible for the child’s care
  • The whereabouts of the child
  • The nature and extent of the abuse or neglect of the child, including any evidence or information available to the reporter concerning possible previous instances of abuse or neglect
  • Any other information that might be helpful to determine the cause of the suspected abuse or neglect and the identity of any individual responsible for the abuse or neglect
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The oral report shall be made to the local department or the appropriate law enforcement agency. The written report shall be made to the local department, with a copy to the local State’s attorney.

An agency to which an oral report of suspected abuse or neglect is made shall immediately notify the other agency. This paragraph does not prohibit a local department and an appropriate law enforcement agency from agreeing to cooperative arrangements.

Initial Screening Decisions

Selected reports of abuse or neglect may be assigned to an alternative response program. Only a low-risk report of abuse or neglect may be considered for an alternative response. A report that is not assigned for an alternative response shall be assigned for investigation.

Within 24 hours after receiving a report of suspected physical or sexual abuse of a child, and within 5 days after receiving a report of suspected neglect or suspected mental injury of a child, the local department or the appropriate law enforcement agency shall:

  • See the child
  • Attempt to have an onsite interview with the child’s caregiver
  • Decide on the safety of the child, wherever the child is, and of other children in the household
  • Decide on the safety of other children in the care or custody of the alleged abuser
Agency Conducting the Assessment/Investigation

Promptly after receiving a report of suspected abuse or neglect of a child who lives in this State that is alleged to have occurred in this State, the local department or the appropriate law enforcement agency, or both, if jointly agreed on, shall make a thorough investigation of a report of suspected abuse or neglect to protect the health, safety, and welfare of the child or children.

The agencies responsible for investigating reported cases of suspected sexual abuse, including the local department, the appropriate law enforcement agencies, and the local State’s attorney, shall implement a joint investigation procedure for conducting joint investigations of sexual abuse.

Assessment/Investigation Procedures

The investigation shall include:

  • A determination of the nature, extent, and cause of the abuse or neglect, if any
  • If mental injury is suspected, an assessment by two of the following: a licensed physician, psychologist, or social worker

If the suspected abuse or neglect is verified:

  • A determination of the identity of the person or persons responsible for the abuse or neglect
  • A determination of the name, age, and condition of any other child in the household
  • An evaluation of the parents and the home environment
  • A determination of any other pertinent facts or matters
  • A determination of any needed services

An ‘alternative response’ is a comprehensive assessment of:

  • Risk of harm to the child
  • Risk of subsequent child abuse or neglect
  • Family strengths and needs
  • The provision of or referral for necessary services

When a report is referred for an alternative response, the local department shall:

  • See the child and the child’s parent or primary caregiver within 24 hours of receiving a report of physical abuse or within 5 days of receiving a report of neglect
  • Attempt to have an onsite interview with the child’s parent or primary caregiver
  • Evaluate the child’s home environment
  • Decide on the safety of the child, wherever the child is, and of other children in the household
  • Decide on the safety of other children in the care or custody of the individual suspected of abuse or neglect
  • Advise the appropriate law enforcement agency that the report has been assigned for an alternative response, if the law enforcement agency made the report of abuse or neglect
  • Inform the individual suspected of child abuse or neglect of the allegations made against the individual in a manner consistent with laws protecting the rights of the person who made the report
Timeframes for Completing Investigations

To the extent possible, an investigation shall be completed within 10 days after receipt of the first notice of the suspected abuse or neglect by the local department or law enforcement agencies. An investigation that is not completed within 30 days shall be completed within 60 days of receipt of the first notice of the suspected abuse or neglect.

Within 10 days after the local department or law enforcement agency receives the first notice of suspected abuse of a child, the local department or law enforcement agency shall report to the local State’s attorney the preliminary findings of the investigation. Within 5 business days after completion of the investigation, the local department and the appropriate law enforcement agency, if that agency participated in the investigation, shall make a complete written report of its findings to the local State’s attorney.

An alternative response assessment shall be completed within 60 days after the receipt of the report. Within 10 days after completing the alternative response assessment, the department shall provide a written report to the family members who are participating in the alternative response assessment as to whether and what services are necessary to address:

  • The safety of the child or other children in the household
  • The risk of subsequent abuse or neglect
Classification of Reports

Reports may be classified as follows:

  • ‘Indicated’ means a finding that there is credible evidence, which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur.
  • ‘Unsubstantiated’ means a finding that there is an insufficient amount of evidence to support a finding of indicated or ruled out.
  • ‘Ruled out’ means a finding that abuse, neglect, or sexual abuse did not occur.

Parental Drug Use as Child Abuse

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Current Through April 2015

Promptly after receiving a report from a hospital or health practitioner of suspected neglect related to drug abuse and conducting an appropriate investigation, the local department may file a petition alleging that the child is in need of assistance under Title 3, Subtitle 8 of the Courts Article, and offer the mother admission into a drug treatment program.

The local department may initiate a judicial proceeding to terminate a mother’s parental rights, if the local department offers the mother admission into a drug treatment program under this subsection within 90 days after the birth of the child and if the mother:

  • Does not accept admission to the program or its equivalent within 45 days after the offer is made
  • Does not accept the recommended level of drug treatment within 45 days after the offer is made
  • Fails to fully participate in the program or its equivalent

The Department of Human Resources, in cooperation with the Department of Health and Mental Hygiene, shall develop intervention systems in at least four counties designated by the Secretary of Human Resources that include drug treatment for a mother of a child who is born drug-exposed and supportive services for the family of the child.

An intervention shall be initiated when a child is born drug-exposed and medical personnel have determined that the child is at a high risk of abuse or neglect.

Subject to the provisions above, the local Department of Social Services and the Department of Health and Mental Hygiene shall assist the mother of a child who is born drug-exposed in obtaining drug treatment and providing supportive services to maintain family unity.

A Child in Need of Assistance [CINA] petition shall be filed on behalf of a child who is born drug-exposed if:

  • The mother refuses the recommended level of drug treatment or does not successfully complete the recommended level of drug treatment.
  • The mother is unable to provide adequate care for the child.
  • The father is unable to provide adequate care for the child.

Within 1 year after a child’s birth, there is a presumption that a child is not receiving proper care and attention from the mother for purposes of § 3-801(f)(2) of this subtitle if:

  • The child was born exposed to cocaine, heroin, or methamphetamine, or a derivative of cocaine, heroin, or methamphetamine, as evidenced by any appropriate tests of the mother or child.
  • Upon admission to a hospital for delivery of the child, the mother tested positive for cocaine, heroin, or methamphetamine, or a derivative of cocaine, heroin, or methamphetamine, as evidenced by any appropriate toxicology test.
  • Drug treatment is made available to the mother and the mother refuses the recommended level of drug treatment or does not successfully complete the recommended level of drug treatment.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

A child who is the subject of a child in need of assistance (CINA) petition shall be represented by an attorney counsel.

Unless the court finds that it would not be in the best interests of the child, the court shall:

  • Appoint an attorney with whom the Department of Human Resources has contracted to provide those services, in accordance with the terms of the contract
  • If another attorney has previously been appointed, strike the appearance of that attorney
The Use of Court-Appointed Special Advocates (CASAs)

In addition to, but not instead of, the appointment of an attorney, the court, in any action, may appoint an individual provided by a Court-Appointed Special Advocate (CASA) Program created under § 3-830.

Qualifications/Training

Lawyers who seek to represent children in these proceedings are encouraged to seek training and education in such subjects as:

  • The role of child’s counsel
  • Assessing considered judgment
  • Basic interviewing techniques
  • Child development, including cognitive, emotional, and mental stages
  • Federal and State statutes, regulations, rules, and case law
  • Overview of the court process and key personnel in child-related litigation
  • Applicable guidelines and standards of representation
  • Family dynamics and dysfunction, including substance abuse and mental illness
  • Related issues such as domestic violence, special education, mental health, developmental disability systems, and adult guardianships
  • Social service agencies, child welfare programs, and medical, educational, and mental health resources for the child and family
  • Written materials, including related motions, court orders, pleadings, and training manuals
Specific Duties

The CASA program is created in a county with the support of the court for that county to provide trained volunteers whom the court may appoint to:

  • Provide the court with background information to aid it in making decisions in the child’s best interests
  • Ensure that the child is provided appropriate case planning and services
How the Representative Is Compensated

The court may assess against any party reasonable compensation for the services of an attorney appointed to represent a child in an action under this subtitle.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Within 60 days after placement, a written case plan shall be developed for each child in out-of-home placement.

The case plan shall be reassessed within 120 days of the initial plan and every 180 days after that. The local department shall amend the case plan, as necessary, in light of the child’s situation and of any court orders that affect the child.

Who May Participate in the Case Planning Process

The local department, together with the child’s parent or legal guardian, shall develop the written case plan.

Contents of a Case Plan

The case plan shall:

  • Describe the circumstances that make placement necessary
  • State with whom the child was living before placement and their relationship to the child
  • Describe the efforts that were made but were unsuccessful in preventing or eliminating the need for removal from the child’s home, including the consideration of both in-State and out-of-State placement options, or why such efforts were not possible

The local department shall:

  • Identify and develop a concurrent permanency plan, as appropriate
  • Prioritize permanency plan options using the following order of preference:
    • Reunification with the parent or legal guardian
    • Placement with a relative for adoption or custody and guardianship
    • Adoption by a nonrelative
    • Guardianship by a nonrelative
    • Another planned permanent living arrangement
  • Project the date when the concurrent permanency plans shall be achieved
  • Describe the specific service and behavioral objectives that shall be achieved before the return of the child to the parents if one of the concurrent permanency plans is reunification
  • Identify the services to be provided to the parents and the child in order to achieve the permanency goals
  • Include consideration of the least restrictive setting appropriate to the child’s safety and care needs, and when determining a permanency plan, consider the following in descending order of priority:
    • The local jurisdiction where the child’s parent resides
    • Placement in another jurisdiction in the State, based on a compelling reason that it is in the child’s best interests because:
      • The child has strong ties to family, a placement resource, or other community resources in another jurisdiction in the State.
      • Necessary specialized services are not available to the child in the local jurisdiction but are available in another jurisdiction in the State.
      • There are no placements available in the jurisdiction to meet the individualized special placement needs of the child.
  • Describe the type of home or institution in which the child has been or is to be placed and discuss the safety and appropriateness of the placement
  • Discuss how the local department plans to carry out specific court orders, if any, pertaining to the child
  • Include a plan for ensuring that the child receives safe and appropriate care
  • Include a plan for working to ensure that services are provided to the child, parents, and resource parents to improve the conditions in the parents’ home and to facilitate the child’s return to his or her own safe home or other safe and appropriate permanent placement
  • Include a plan for working to ensure that services are provided to the child and foster parents to address the needs of the child while in foster care
  • Discuss the appropriateness of the services that have been provided to the child
  • For a child age 14 or older, include a written description of the life skills training that will help the child prepare for independent living
  • To the extent available and accessible, include the most recent health and education records of the child, including:
    • The names and addresses of the child’s health and educational providers
    • The child’s grade-level performance
    • The child’s school record
    • Assurances that the child’s placement in out-of-home care takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement
    • A record of the child’s immunizations, known medical problems, and medications
    • Any other relevant health and education information

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

Unless a child has received a review from the local board of review of foster care, the local Department of Social Services shall perform an administrative review every 6 months to determine the success of the efforts to meet the goals set out in the permanency plan or the agreement with the parents or guardians in voluntary placements.

The court shall conduct a hearing to review the status of each child under its jurisdiction within 6 months after the filing of the first petition under this subtitle and at least every 6 months thereafter.

The court shall hold a permanency planning hearing to determine the permanency plan for a child:

  • No later than 11 months after a child has entered an out-of-home placement
  • Within 30 days after the court finds that reasonable efforts to reunify a child with the child’s parent or guardian are not required

A child shall be considered to have entered an out-of-home placement 30 days after the child is placed into an out-of-home placement. If all parties agree, a permanency planning hearing may be held on the same day as the reasonable efforts hearing.

The court shall:

  • Conduct a hearing to review the permanency plan at least every 6 months until commitment is rescinded or a voluntary placement is terminated
  • Conduct a review hearing every 12 months after the court determines that the child shall be continued in out-of-home placement with a specific caregiver who agrees to care for the child on a permanent basis

Unless the court finds good cause, a case shall be terminated after the court grants custody and guardianship of the child to a relative or other individual. If the court finds good cause not to terminate a case, the court shall conduct a review hearing every 12 months until the case is terminated.

Persons Entitled to Attend Hearings

The court shall give each party notice and an opportunity to attend the hearing. The term ‘party’ means:

  • A child who is the subject of a petition
  • The child’s parent, guardian, or custodian
  • The petitioner
  • An adult who is charged under § 3-828 as a person who has contributed to acts, omissions, or conditions that rendered a child in need of assistance

The term ‘party’ does not include a foster parent. The foster parents are permitted to attend all hearings. This right does create a cause of action for foster parents.

Determinations Made at Hearings

At a review hearing, the court shall:

  • Evaluate the safety of the child
  • Determine the continuing necessity for and appropriateness of any out-of-home placement
  • Determine the appropriateness of and extent of compliance with the case plan for the child
  • Determine the extent of progress that has been made toward alleviating or mitigating the causes necessitating the court’s jurisdiction
  • Project a reasonable date by which the child may be returned to and safely maintained in the home or placed for adoption or under a legal guardianship

If a permanency plan for the child has been determined under § 3-823 of this subtitle, the permanency review hearing conducted by the court shall satisfy the requirements of this section.

At the permanency review hearing, the court shall:

  • Determine the continuing necessity for and appropriateness of the commitment
  • Determine and document in its order whether reasonable efforts have been made to finalize the permanency plan that is in effect
  • Determine the extent of progress that has been made toward alleviating or mitigating the causes necessitating commitment
  • Project a reasonable date by which a child in placement may be returned home, placed in a preadoptive home, or placed under a legal guardianship
  • Evaluate the safety of the child and take necessary measures to protect the child
  • Change the permanency plan if a change in the permanency plan would be in the child’s best interest

Every reasonable effort shall be made to achieve a permanent placement for the child within 24 months after the date of initial placement. At least every 12 months at a hearing under this section, the court shall consult on the record with the child in an age-appropriate manner to obtain the child’s views on permanency.

Permanency Options

To the extent consistent with the best interests of the child in an out-of-home placement, the local department shall consider the following permanency plans, in descending order of priority:

  • Returning the child to the child’s parent or guardian, unless the local department is the guardian
  • Placing the child with relatives to whom adoption, custody and guardianship, or care and custody, in descending order of priority, are planned to be granted
  • Adoption in the following descending order of priority:
    • By a current foster parent with whom the child has resided continually for at least the 12 months prior to developing the permanency plan or for a sufficient length of time to have established positive relationships and family ties
    • By another approved adoptive family
  • Another planned permanent living arrangement that:
    • Addresses the individualized needs of the child, including the child’s educational plan, emotional stability, physical placement, and socialization needs
    • Includes goals that promote the continuity of relations with individuals who will fill a lasting and significant role in the child’s life

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 developing a permanency plan for a child in an out-of-home placement, the local department shall give primary consideration to the best interests of the child, including consideration of both in-State and out-of-State placements. The local department shall consider the following factors in determining the permanency plan that is in the best interests of the child:

  • The child’s ability to be safe and healthy in the home of the child’s parent
  • The child’s attachment and emotional ties to the child’s natural parents and siblings
  • The child’s emotional attachment to the child’s current caregiver and the caregiver’s family
  • The length of time the child has resided with the current caregiver
  • The potential emotional, developmental, and educational harm to the child if moved from the child’s current placement
  • The potential harm to the child by remaining in State custody for an excessive period of time

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

A petition for termination of parental rights shall be filed if:

  • The child has been in an out-of-home placement for 15 of the most recent 22 months.
  • A court finds that the child is an abandoned infant.
  • A court finds that the parent has been convicted, in any State or any court of the United States, of:
    • A crime of violence against a minor offspring of the parent, the child, or another parent of the child
    • Aiding, abetting, conspiring, or soliciting to commit a crime described above
Circumstances That Are Exceptions to Termination of Parental Rights

The Department of Human Services is not required to file a petition for termination of parental rights if:

  • The child is being cared for by a relative.
  • The department has documented in the case plan a compelling reason why termination of parental rights would not be in the child’s best interests.
  • The department has not provided services to the family consistent with the time period in the case plan that the department considers necessary for the safe return of the child to the child’s home.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

An infant may be relinquished within 10 days of his or her birth.

Who May Relinquish the Infant

The mother or other person may relinquish the infant. If the person leaving a newborn is not the mother of the newborn, the person shall have the approval of the mother to do so.

Who May Receive the Infant

The infant may be delivered to a responsible adult or a hospital or other facility designated by regulation.

Responsibilities of the Safe Haven Provider

A person who receives an infant shall take the infant to a hospital. The hospital shall notify the local Department of Social Services within 24 hours.

Immunity for the Provider

A responsible adult and a hospital or other designated facility that accepts a newborn under this section and an employee or agent of the hospital or facility shall be immune from civil liability or criminal prosecution for good-faith actions taken related to the acceptance of or medical treatment or care of the newborn, unless injury to the newborn was caused by gross negligence or willful or wanton misconduct.

Protection for Relinquishing Parent

A person who leaves an unharmed newborn with a responsible adult within 10 days after the birth of the newborn, as determined within a reasonable degree of medical certainty, and does not express an intent to return for the newborn, shall be immune from civil liability or criminal prosecution for the act.

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 ‘guardianship’ means that a court has granted physical and legal custody, including legal authority and responsibility for a child, to an individual to provide for a child’s needs.

The term ‘kinship care’ means continuous 24-hour care and supportive services provided for a minor child placed by a child-placing agency in the home of a relative related by blood or marriage, within the fifth degree of consanguinity or affinity.

The term ‘relative’ means an adult who is at least age 21, or at least age 18 and married to an adult who is at least age 21, and who is:

  • Related by blood, marriage, or adoption within the fifth degree of consanguinity or affinity
  • An individual who makes up the family support system, including adults related beyond the fifth degree of consanguinity or affinity, godparents, friends of the family, or other adults who have a strong familial bond with the child

The term ‘relative caregiver’ means a relative, or relatives as is applicable, of a child who is in the care, custody, or guardianship of a local department and who has been designated by the local department as a temporary 24-hour caregiver of that child.

The term ‘relative guardian’ means a relative caregiver whom the court has designated as guardian.

Purpose of Guardianship

The purpose of the guardianship assistance program is to provide legal stability for a child who is in the custody or guardianship of a local department of social services by allowing relative caregivers to take full legal responsibility for the child.

The goals of the guardianship assistance program are to:

  • Encourage relative caregivers to become legal guardians of a child who has been placed in their home by a local department of social services by removing financial barriers
  • Provide a permanent, safe, and nurturing environment for a child that supports a familial cultural background
A Guardian’s Rights and Responsibilities

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

Qualifying the Guardian

The report to the court shall include a:

  • Home study
  • Child protective services history
  • Criminal history records check
  • Review of the proposed guardian’s physical and mental health history

In regulation: The local department shall give priority to the child’s relatives over nonrelatives when determining permanency plans and placement. The decision by the local department to place a child with relatives shall be made:

  • With the participation of the relatives
  • After completing a home study to include:
    • A physical description of the relative’s living situation and family history
    • Services needed by the child
    • The relative’s ability and capacity to safely assume parental responsibilities
  • When feasible, in conjunction with a visit or visits by the child in the relative’s home

Before custody and guardianship are granted to a relative or nonrelative of a child not committed to the local department, the local department shall:

  • Determine if departmental funds are available to support and maintain the child
  • Assess all factors necessary to determine the best interests of the child
  • Pursuant to an order from the court, prepare a report on the suitability of the individual to be the guardian of the child that includes a:
    • Home study for custody and guardianship
    • Child protective services history, if any
    • Criminal background check
    • Review of the proposed guardian’s physical and mental health history

The local department shall submit the report to the court within 120 days after the date that the court issued the order to the local department to produce the report.

Procedures for Establishing Guardianship

At a guardianship review hearing held 1 year or more after a juvenile court enters an order for guardianship of a child, the juvenile court may designate an individual guardian of the child if:

  • The local department certifies the child’s successful placement with the individual under the supervision of the local department or its agent for at least 180 days or a shorter period allowed by the juvenile court on recommendation of the local department.
  • The local department files a report by a child-placing agency, completed in accordance with department regulations, as to the suitability of the individual to be the child’s guardian.
  • The juvenile court makes a specific finding that:
    • For a compelling reason, adoption is not in the child’s best interests.
    • Custody and guardianship by the individual is in the child’s best interests and is the least restrictive alternative available.

Designation of a guardian under this paragraph terminates the local department’s legal obligations and responsibilities to the child.

Before granting custody and guardianship under this section, the court shall consider:

  • Any assurance by the local department that it will provide funds necessary for the support and maintenance of the child
  • All factors necessary to determine the best interests of the child
  • A report by a local department or a licensed child-placing agency, completed in compliance with regulations adopted by the Department of Human Resources, on the suitability of the individual to be the guardian of the child.
Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

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

Eligibility for Guardianship Subsidy

Both the child and the relative caregiver shall meet the eligibility requirements stated in this chapter, including:

  • The child shall be placed with the caregiver for at least 6 consecutive months prior to the establishment of guardianship assistance.
  • The relative caregiver home shall be approved as a resource home or kinship home for 6 consecutive months in which the child resided with the caregiver.

A child committed to a local department shall be eligible for consideration to participate when:

  • A court has determined that continuation in the home would be contrary to the welfare of the child.
  • The child has resided with the relative caregiver for 6 consecutive months.
  • The local department has established that both returning home and adoption have been ruled out.
  • The child demonstrates a strong attachment to the relative caregiver.
  • The child is under age 18 at the time of the court hearing to award custody and guardianship.
  • The school-age child under age 18 is a full-time elementary or secondary school student, or is incapable of attending school due to a documented medical condition.

To be eligible for the guardianship assistance program, the relative caregiver shall:

  • Successfully complete the application requirements as set forth in this regulation
  • Be an approved resource or formal kinship home with the child in the placement for 6 consecutive months
  • Demonstrate a strong commitment to permanently care for the child

The relative caregiver shall:

  • Complete a signed written application
  • Complete a physical assessment and a mental health history
  • Meet all the requirements of approval for a resource home or kinship home

The spouse of a relative guardian shall be encouraged to participate as a relative guardian for the agreement and the court-determined guardianship.

Links to Agency Policies

Maryland Department of Human Resources, Social Services Administration, 1.9.15 COMAR 07.02.29, Guardianship Assistance Programexternal link (PDF – 518 KB)

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘kinship care’ means continuous 24-hour care and supportive services provided to a minor child placed by a child placement agency in the home of a person related by blood or marriage within the fifth degree of consanguinity or affinity under the civil law rule.

The term ‘kinship parent’ means an individual who is related by blood or marriage within five degrees of consanguinity or affinity under the civil law rule to a child who is in the care, custody, or guardianship of the local department and with whom the child may be placed for temporary or long-term care other than adoption.

In selecting a placement that is in the best interests of a child in need of out-of-home placement:

  • The local department shall, as a first priority, attempt to place the child with a kinship parent.
  • The local department shall exhaust all reasonable resources to locate a kinship parent for initial placement of the child.
  • If no kinship parent is located at the time of the initial placement, the child shall be placed in a foster care setting.
  • If a kinship parent is located subsequent to the placement of a child in a foster care setting, the local department may, if it is in the best interests of the child, place the child with the kinship parent.
Requirements for Placement with Relatives

A criminal history records check is required for any adult known to be residing in the home of an adult relative of a child with whom the child, committed to a local department, is placed by the local department.

A kinship parent must be at least age 21. If the kinship parent is at least age 18 and married to a person who is at least age 21, the department may waive this requirement.

In regulation: Restricted resource homes shall meet the same requirements as regular resource homes. A restricted resource home can be either that of a relative or nonrelative. In either case, the same eligibility criteria apply. Provisional approval may be granted only to a relative of a child who seeks to become a restricted resource parent.

Requirements for Placement of Siblings

A local department shall place together siblings who are in an out-of-home placement under § 5-525 of this subtitle if:

  • It is in the best interests of the siblings to be placed together.
  • Placement of the siblings together does not conflict with a specific health or safety regulation.

If placement of the siblings together conflicts with a specific health or safety regulation, the local department may place the siblings together if the local department makes a written finding describing how placement of the siblings together serves the best interests of the siblings.

Any siblings who are separated due to a foster care or adoptive placement may petition a court, including a juvenile court with jurisdiction over one or more of the siblings, for reasonable sibling visiting rights. If a petitioner under this subsection petitions a court to issue a decree regarding visits or to amend an order, the court:

  • May hold a hearing to determine whether such visits are in the best interests of the children
  • Shall weigh the relative interests of each child and base its decision on the best interests of the children promoting the greatest welfare and least harm to the children
  • May issue an appropriate order or decree
Relatives Who May Adopt

The child may be placed for adoption with a relative of the child, by blood or marriage, within four degrees of affinity or consanguinity under the civil law rule.

Requirements for Adoption by Relatives

The provisions of § 5-3B-12, which requires the parent to petition the court for approval before placing the child for adoption, and § 5-3B-24, which requires the adoption petitioner to file with the court an accounting of all payments, are not applicable when the child is placed for adoption with a relative of the child.

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 Human Resources shall provide time-limited family reunification services to a child placed in an out-of-home placement and to the parent or guardian of the child in order to facilitate the child’s safe and appropriate reunification in a timely manner.

When Reasonable Efforts Are Required

Reasonable efforts shall be provided to preserve or reunify a family:

  • Prior to an out-of-home placement to prevent or eliminate the need for removing the child from home
  • To make it possible for a child to return home safely
  • To finalize a permanent placement for the child if continuation of reasonable efforts is determined to be inconsistent with the permanency plan
When Reasonable Efforts Are NOT Required

A local department may ask the court to find that reasonable efforts to reunify a child with the child’s parent are not required if the local department concludes that a parent:

  • Has subjected the child to any of the following aggravated circumstances:
    • The parent has engaged in or facilitated chronic or severe physical abuse, chronic and life-threatening neglect, sexual abuse, or torture of the child, a sibling of the child, or another child in the household.
    • The parent knowingly failed to take appropriate steps to protect the child after a person in the household inflicted sexual abuse, severe physical abuse, life-threatening neglect, or torture on the child or another child in the household.
    • The child, a sibling of the child, or another child in the household has suffered severe physical abuse or death resulting from abuse by the parent or another adult in the household, and all persons who could have inflicted the abuse or caused the death remain in the household.
    • The parent has abandoned the child.
  • Has been convicted, in any State or any court of the United States, of:
    • A crime of violence against a minor offspring of the parent or guardian, the child, or another parent of the child
    • Aiding or abetting, conspiring, or soliciting to commit a crime of violence
  • Has involuntarily lost parental rights of a sibling of the child

The term ‘crime of violence’ includes abduction, arson, kidnapping, manslaughter, mayhem, maiming, rape, robbery, carjacking, sexual offenses, use of a handgun in the commission of a felony or other crime of violence, first-degree child abuse, and assault.

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

The parent may file a petition for appointment of a standby guardian. Each person having parental rights over the minor must join in the petition.

How to Establish a Standby Guardian

The petition for the judicial appointment of a standby guardian shall state:

  • The duties of the standby guardian
  • Whether the authority of the standby guardian is to become effective on the petitioner’s incapacity or death, whichever occurs first
  • That there is a significant risk that the petitioner will become incapacitated or die within 2 years of the filing of the petition and the basis for this statement

If the court finds that there is a significant risk that the petitioner will become incapacitated or die within 2 years of the filing of the petition and that the interests of the minor will be promoted by the appointment of a standby guardian, the court shall issue a decree accordingly.

A parent may also designate a standby guardian by means of a written designation that is signed in the presence of two witnesses who are at least age 18, neither of whom is the standby guardian, and signed by the standby guardian. The written designation shall identify the parent, the minor, and the person designated to be the standby guardian, state the duties of the standby guardian, and indicate that the parent intends for the standby guardian to become the minor’s guardian in the event the parent either:

  • Becomes incapacitated
  • Becomes debilitated and consents to the beginning of the standby guardian’s authority
How Standby Authority is Activated

The standby guardian’s authority becomes effective at:

  • The parent’s death
  • The parent’s incapacity
  • On receipt of the written consent of the parent

If the petition to appoint has already been approved, the standby guardian has 90 days after the parent’s death or incapacity to file confirming documents with the court.

The authority of the standby guardian under a written designation shall begin on the standby guardian’s receipt of:

  • A copy of a determination of debilitation under § 13-906 of this subtitle
  • A copy of the parent’s written consent to the beginning of the standby guardianship, signed by the parent in the presence of two witnesses who are at least age 18, neither of whom is the standby guardian, and signed by the standby guardian
  • A copy of the birth certificate for each child for whom the standby guardian is designated

The standby guardian shall file a petition for judicial appointment within 180 days of the date of the beginning of the standby guardianship under this section.

Involvement of the Noncustodial Parent

Citation: Ann. Code, Est. & Trusts § 13-903
Any person with parental rights over the minor must join in the petition to appoint a standby guardian. If a person with parental rights cannot be located after reasonable efforts have been made, the court may proceed to appoint a standby guardian.

Authority Relationship of the Parent and the Standby

The standby guardian’s authority is limited and does not divest the parent of any parental or guardianship rights.

Withdrawing Guardianship

Before the petition is filed, the parent may notify the standby guardian verbally or in writing. After the petition has been granted, the parent must file a written revocation with the court and notify the standby guardian.

The standby guardian may renounce an appointment at any time before assuming authority by filing a written renunciation with the court and notifying the parent in writing.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

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6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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10th Circuit

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US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

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9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

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

5th Circuit

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10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

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

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US Supreme Court

CPS Statutes

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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8th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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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)

 

 

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