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

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

Massachusetts

 

DCF policies

Massachusetts Laws

States website

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

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

Current Through February 2016

Physical Abuse

‘Abuse’ means the nonaccidental commission of any act by a caregiver upon a child under age 18 that causes or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth, or any sexual contact between a caregiver and a child under the care of that individual.

‘Physical injury’ means:

  • Death
  • Fracture of a bone, a subdural hematoma, burns, impairment of any organ, and any other such nontrivial injury
  • Soft tissue swelling or skin bruising depending upon such factors as the child’s age, circumstances under which the injury occurred, and the number and location of bruises
  • Addiction to a drug at birth
  • Failure to thrive
Neglect

‘Neglect’ means failure by a caregiver, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability, and growth, or other essential care.

Sexual Abuse/Exploitation

A ‘child requiring assistance’ is a child between the ages of 6 and 18 who is a sexually exploited child. A ‘sexually exploited child’ is any person younger than age 18 who has been subjected to sexual exploitation because such person:

  • Is the victim of the crime of sexual servitude, pursuant to chapter 265, § 50, or is the victim of the crime of sex trafficking, as defined in 22 U.S.C. § 7105
  • Engages, agrees to engage, or offers to engage in sexual conduct with another person in return for a fee or in exchange for food, shelter, clothing, education, or care
  • Is a victim of the crime, whether or not prosecuted, of inducing a minor into prostitution
  • Engages in common night walking or common streetwalking

In regulation: The term ‘abuse’ includes a sexual offense under the laws of the Commonwealth or any sexual contact between a caregiver and a child under the care of that individual.

Emotional Abuse

‘Emotional injury’ means an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child’s ability to function within a normal range of performance and behavior.

Abandonment

Citation: Ann. Laws Ch. 119, § 39
‘Abandonment’ of an infant under age 10 occurs when:

  • A person leaves the child within or without any building.
  • A parent or other person who has a legal duty to care for the child, having made a contract for the child’s board or maintenance, absconds or fails to perform such contract, and for 4 weeks after such absconding or breach of contract, if of sufficient physical and mental ability, neglects to visit or remove the child or notify the department of his or her inability to support the child.
Standards for Reporting

Citation: Ann. Laws Ch. 119, § 51A
A report is required when a mandatory reporter, who in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from:

  • Abuse inflicted upon the child that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse
  • Neglect, including malnutrition
  • Physical dependence upon an addictive drug at birth
  • Being a sexually exploited child
  • Being a human trafficking victim
Persons Responsible for the Child

Responsible persons include the parent and any other person responsible for the child’s care.

In regulation: The term ‘caretaker’ [caregiver] means:

  • A child’s parent, stepparent, or guardian
  • Any household member entrusted with the responsibility for a child’s health or welfare
  • Any other person entrusted with the responsibility for a child’s health or welfare, whether in the child’s home, a relative’s home, a school setting, a daycare setting (including babysitting), a foster home, a group care facility, or any other comparable setting

The term ‘caretaker’ includes, but is not limited to, schoolteachers, babysitters, schoolbus drivers, camp counselors, etc.

Exceptions

It is not considered neglect when the inability to care for the child is due solely to inadequate economic resources or solely to the existence of a handicapping condition.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

This issue is not addressed in the statutes reviewed.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

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

  • Attempting to cause or causing physical harm
  • Placing another in fear of imminent serious physical harm
  • Causing another to engage involuntarily in sexual relations by force, threat, or duress
Persons Included in the Definition

‘Family or household members’ includes persons who:

  • Are or were married to one another
  • Are or were residing together in the same household
  • Are or were related by blood or marriage
  • Have a child in common regardless of whether they have ever married or lived together
  • Are or have been in a substantive dating or engagement relationship

A substantive dating relationship shall be adjudged by district, probate, or Boston municipal courts in consideration of the following factors:

  • The length of time of the relationship
  • The type of relationship
  • The frequency of interaction between the parties
  • If the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

No mandated reporter shall be liable in any civil or criminal action for filing a report under this section or for contacting local law enforcement authorities or the child advocate, if the report or contact was made in good faith, was not frivolous, and the reporter did not cause the abuse or neglect. No other person filing a report under this section shall be liable in any civil or criminal action by reason of the report if it was made in good faith and if that person did not perpetrate or inflict the reported abuse or cause the reported neglect. Any person filing a report under this section may be liable in a civil or criminal action if the department or a district attorney determines that the person filing the report may have perpetrated or inflicted the abuse or caused the neglect.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter shall make an oral report immediately when, in his or her professional capacity, he or she has reasonable cause to believe that a child is suffering physical or emotional injury resulting from:

  • Abuse inflicted upon him or her that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse
  • Neglect, including malnutrition
  • Being a sexually exploited child
  • Being a human trafficking victim, as defined by chapter 233, § 20M

Within 48 hours of making the oral report, the mandated reporter shall file a written report detailing the suspected abuse or neglect.

Content of Reports

A report filed under this section shall contain:

  • The names and addresses of the child and the child’s parents or other person responsible for the child’s care, if known
  • The child’s age and sex
  • The nature and extent of the child’s injuries, abuse, maltreatment, or neglect, including any evidence of prior injuries, abuse, maltreatment, or neglect
  • The circumstances under which the person required to report first became aware of the child’s injuries, abuse, maltreatment, or neglect
  • Whatever action, if any, was taken to treat, shelter, or otherwise assist the child
  • The name of the person or persons making the report
  • Any other information that the person reporting believes might be helpful in establishing the cause of the injuries
  • The identity of the person or persons responsible for the neglect or injuries
  • Other information required by the department
Reporting Suspicious Deaths

A mandated reporter who has reasonable cause to believe that a child has died as a result of any of the conditions listed above shall report the death to the district attorney for the county in which the death occurred and the Office of the Chief Medical Examiner.

Reporting Substance-Exposed Infants

A mandated reporter who, in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from physical dependence upon an addictive drug at birth shall immediately communicate with the department orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect.

Agency Receiving the Reports

Both the oral and written reports shall be submitted to the Department of Children and Families. A mandated reporter may, in addition to filing a report under this section, contact local law enforcement authorities or the child advocate about the suspected abuse or neglect.

Initial Screening Decisions

Upon receipt of a report, the department immediately shall screen the report. The purpose of screening is to identify children at risk of abuse or neglect from a caregiver and to distinguish the need for an emergency or nonemergency response.

If the screener determines that the report constitutes an event or subject matter within the department’s mandate and that the reported condition poses a threat of immediate danger to the life, health, or physical safety of the child, then the screener shall designate the report an ’emergency report’ and cause the matter to be assigned for an immediate investigation.

If the screener determines that the reported condition does not pose a threat of immediate danger to the life, health, or physical safety of the child, then the screener shall designate the report a ‘nonemergency report’ and cause the matter to be assigned for an investigation as provided in 110 CMR 4.27.

Agency Conducting the Assessment/Investigation

Upon receipt of a report, the department shall investigate the suspected child abuse or neglect, provide a written evaluation of the household of the child, including the parents and home environment, and make a written determination relative to the safety of and risk posed to the child. The department shall coordinate with other agencies to make all reasonable efforts to minimize the number of interviews of any potential victim of child abuse or neglect.

The department shall immediately report to the district attorney and local law enforcement authorities a sexually exploited child or a child who is otherwise a human trafficking victim, regardless of whether the child is living with a parent, guardian, or other caregiver.

Assessment/Investigation Procedures

The investigation shall include:

  • A home visit at which the child is observed, if appropriate
  • A determination of the nature, extent, and cause or causes of the injuries
  • The identity of the person or persons responsible for the injuries
  • The name, age, and condition of other children in the same household
  • An evaluation of the parents and the home environment
  • All other pertinent facts or matters

Upon completion of the investigation and evaluation, the department shall make a written determination relative to:

  • The safety of the child and risk of physical or emotional injury to that child
  • The safety of and risk to any other children in the household
  • Whether the suspected child abuse or neglect is substantiated
Timeframes for Completing Investigations

The investigation of all emergency reports shall commence within 2 hours of initial contact and shall be completed within 5 working days after the receipt of the report.

The investigation of all nonemergency reports shall commence within 2 working days of initial contact and shall be completed within 15 working days following the receipt of the report.

Classification of Reports

Upon receipt of a report, the department shall investigate the suspected child abuse or neglect and make a written determination as to whether the suspected child abuse or neglect is substantiated.

If the department determines during the initial screening period of an investigation that a report is frivolous, or other absolute determination that abuse or neglect has not taken place, such report shall be declared as ‘allegation invalid.’

In regulation: After completion of its investigation, the department shall make a determination as to whether the allegations in the report are ‘supported’ or ‘unsupported.’

To support a report means that the department has reasonable cause to believe that an incident of abuse or neglect by a caregiver did occur. To support a report does not mean that the department has made any finding with regard to the perpetrator(s) of the reported incident of abuse or neglect. It simply means that there is reasonable cause to believe that some caregiver did inflict abuse or neglect upon the child in question.

‘Reasonable cause to believe’ means a collection of facts, knowledge, or observations that tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected.

Parental Drug Use as Child Abuse

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Current Through April 2015

A mandated reporter who, in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from: (i) abuse inflicted upon him or her that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse; (ii) neglect, including malnutrition; or (iii) physical dependence upon an addictive drug at birth, shall immediately communicate with the Department of Children and Families orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

When an application for assistance stating that a child and family are in need of assistance is initiated, the child shall be informed that he or she has a right to counsel at all hearings. If the child is not able to retain counsel, the court shall appoint counsel for the child.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Attorneys who wish to accept assignments for child protection cases must (1) apply for admission to the Children and Family Law (CAFL) trial panel, (2) successfully complete all required trainings, (3) work with a mentor assigned by CAFL, and (4) attend 8 hours of CAFL-approved continuing legal education each fiscal year.

Attorneys seeking certification must submit an application for the CAFL trial panel certification program. Preference is given to attorneys with an established practice, experience working with families, and litigation skills.

Attorneys accepted into the training program must attend a 5-day seminar, ‘Children and Family Law Trial Panel Certification Training Program.’ Newly-certified CAFL trial panel attorneys must attend a 4-hour seminar, ‘Medical Treatment Decisions for Children in DCF Custody,’ within 2 years of the completion of the certification training. Trial panel attorneys must complete 8 hours of CAFL-approved continuing legal education each fiscal year. To maintain certification, attorneys must regularly accept appointments to represent parents and children.

Attorneys who are not currently certified to accept CAFL assignments and wish to accept assignments to represent children in Child in Need of Services (CHINS) matters must (1) apply for admission to the CHINS Child Only (CHINS-CO) panel, (2) successfully complete all required trainings, (3) work with a mentor assigned by CAFL, and (4) attend 4 hours of CAFL-approved continuing legal education each fiscal year.

Specific Duties

Attorneys who accept CAFL and CHINS cases must represent their clients at all trial proceedings. Trial counsel is responsible for appellate proceedings until such time as appellate counsel is assigned by the Committee for Public Counsel Services (CPCS) and enters an appearance. By accepting assignments on these cases attorneys agree to abide by CPCS Performance Standards Governing Representation of Children and Parents in State Intervention and Parental Rights Termination Cases.

How the Representative Is Compensated

The court shall determine whether the parent or guardian of a child alleged to be in need of services is indigent. If the court determines that the parent or guardian is not indigent, the court shall assess a $300 fee against the parent or guardian to pay for the cost of appointed counsel. If the parent is determined to be indigent but is still able to contribute toward the payment of some of said costs, the court shall order the parent to pay a reasonable amount toward the cost of appointed counsel.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Every family receiving services from the Department of Children and Families shall have a service plan.

A service plan shall be completed within the following time periods:

  • For all cases within 10 working days after a comprehensive assessment is completed, but in no event later than 55 working days after the opening of the case
  • For a placement made on an emergency basis to ensure the immediate safety of a child, where there is no service plan, a service plan shall be completed within 30 working days after the placement

Except in an emergency, every family shall have a service plan prior to placing a child in substitute care.

For purposes of developing a service plan the opening of the case occurs upon one of the following:

  • The decision to support a [chapter 119, section] 51A report [of abuse or neglect] after an investigation
  • The decision to open a case for services after an initial assessment
  • The receipt of an application for voluntary services
  • A court order giving custody to the department
Who May Participate in the Case Planning Process

The service plan should include both parents, including the nonresident parent when possible. If either parent is not included in the service plan, an explanation should be included in the case record.

A service plan shall be, to the maximum extent possible, jointly developed by the department and the family receiving services from the department. If the parties are in agreement about the service plan, it shall be signed by all parties, and a copy shall be provided to the family.

If the parties are not in agreement about the service plan, the department shall prepare the service plan, and a copy shall be provided to the family. The department also shall inform the family that they may seek a review of the service plan by using the department’s grievance procedure.

If the parties are in agreement about some but not all of the service plan, the family member has the option of noting and initialing the sections he/she does agree with, or adding services he/she would like the department to offer, and signing the service plan with reservations.

Contents of a Case Plan

A service plan is a written document that describes in detail the tasks to be undertaken and the services to be provided to:

  • Strengthen a family unit
  • Reunify a family unit for a child who has been removed from his or her home
  • Provide an alternative permanent home for a child who has been removed from his or her home

The service plan shall provide a basis for assessing the progress of family members in meeting the goal of the service plan.

Each service plan shall contain the following elements:

  • A statement indicating whether the goal of the service plan is to:
    • Strengthen the family unit
    • Reunify the family unit
    • Provide an alternative permanent home for a child who has been removed from his or her home
  • A statement of the strengths of the family, the areas needing improvement, and behavioral changes family members need to make to achieve the goal of the service plan and close the case
  • A statement of each task the family member must complete to achieve the goal of the service plan and the time by which or the frequency at which the task is to be completed
  • A statement of the tasks the department and other parties must complete and the time by which or the frequency at which the task is to be completed
  • A listing of the services to be provided to family members and the time by which or the frequency at which the service is to be provided

A service plan for a family with a child in substitute care shall contain the elements listed above and each of the following additional elements about the child:

  • The type of placement (foster care, intensive foster care, congregate care, etc.)
  • The history of any previous placements
  • The reason for the child’s current placement
  • Efforts made by the department and the family to prevent the need for placement
  • The visiting schedule between the family and the child, or, if no visits are to be scheduled, an explanation why
  • The visiting schedule between siblings who are not placed together, or if no visits are to be scheduled, the reason why visits are not in the child’s best interests
  • The identification of the permanent plan for the child, which can be any of the following:
    • Permanency through stabilization
    • Permanency through reunification
    • Permanency through adoption
    • Permanency through guardianship
    • Permanency through living with kin
    • Alternative permanency planned living arrangement
  • The projected date by which the child may return home or be placed in another permanent living situation
  • A description of the child’s specific health, dental, and educational needs while in placement

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court shall conduct a permanency hearing:

  • Within 12 months of the original commitment and every 12 months thereafter while the child remains in care
  • Within 30 days of a determination that reasonable efforts are not required

In regulation: The Department of Children and Families shall conduct a foster care review (FCR) within 6 months after a child is placed out of the home and every 6 months thereafter for a child who remains out of the home.

Persons Entitled to Attend Hearings

The department shall provide notice of hearings to:

  • The parent or guardian
  • A foster parent
  • A preadoptive parent
  • Any relative providing care for the child

The notice shall inform the foster parent, preadoptive parent, or relative of his or her right to attend the hearing and to be heard. Nothing in this provision shall be construed to provide that such foster parent, preadoptive parent, or relative shall be made a party to the proceeding.

In regulation: The FCR shall at a minimum invite the following people, who shall be notified in writing to attend the case review prior to its scheduled date:

  • The parents of the child in placement, unless parental rights have been terminated or surrendered or the parent has a documented history of violent or assaultive behavior that is not mitigated by treatment and changes in behavior by the parent
  • A putative or unwed father, unless his parental rights have been surrendered or terminated, if:
    • He is named on any legal papers (i.e. petitions, birth certificate, or other judicial decree).
    • He has formally acknowledged paternity.
    • He has been named as the father by the mother.
  • The child if he or she is age 14 or older
  • The social worker assigned to the case
  • The social worker’s supervisor
  • The foster parents or substitute care provider
  • The child’s attorney or guardian ad litem, if any
  • Staff of other public or private agencies and other individuals important to the child or family
Determinations Made at Hearings

At the permanency hearing, the court shall:

  • Determine and periodically review thereafter the permanency plan for the child
  • Consider in-State and out-of-State placement options for a child who is not to be returned to his or her parents
  • If the child is placed in foster care outside the State, determine whether the out-of-State placement continues to be appropriate and in the best interests of the child
  • In the case of a child who has reached age 16, determine the services needed to assist the child in making the transition from foster care to independent living
  • Determine whether the Department of Children and Families has made reasonable efforts to place the child in a timely manner in accordance with the permanency plan

In regulation: The FCR shall include consideration of the following:

  • The necessity and appropriateness of the services to the family
  • A review of the past 6 months’ activities, including fulfillment of tasks identified in the case plan by the department, the parents, the service providers, and the child
  • A review of the safety of the child and the necessity and appropriateness of the child’s continued placement
  • A review of the extent of progress made toward alleviating or mitigating the causes necessitating the child’s placement
  • A review of the goal and the projected date by which the child will achieve permanency
  • A review of the proposed direction of service planning for the next 6 months, including:
    • The steps necessary to achieve permanency for the child
    • The visitation schedule for the parents and the means by which the schedule will be implemented
  • A review of the child’s medical and dental checkups, consistent with the well-child schedule
Permanency Options

The permanency plan shall address whether and, if applicable, when the child will be:

  • Returned to the parent
  • Placed for adoption
  • Referred for legal guardianship
  • Placed in permanent care with relatives
  • Placed in another planned permanent living arrangement

Determining the Best Interests of the Child

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Current Through March 2016

The health and safety of the child shall be of paramount concern and shall include the long-term well-being of the child.

In all matters and decisions by the department, the policy of the department, as applied to children in its care and protection or children who receive its services, shall be to define best interests of the child as that which shall include, but not be limited to:

  • Considerations of precipitating factors and previous conditions leading to any decisions made in proceedings related to the past, current, and future status of the child
  • The current state of the factors and conditions together with an assessment of the likelihood of their amelioration or elimination
  • The child’s fitness, readiness, abilities, and developmental levels
  • The particulars of the service plan designed to meet the needs of the child within his or her current placement whether with the child’s family or in a substitute care placement, and whether such service plan is used by the department or presented to the courts with written documentation
  • The effectiveness, suitability, and adequacy of the services provided and of placement decisions, including the progress of the child or children therein

The department’s considerations of appropriate services and placement decisions shall be made in a timely manner in order to facilitate permanency planning for the child.

In all department proceedings that affect the child’s past, current, and future placements and status, when determining the best interests of the child, there shall be a presumption of competency that a child who has attained age 12 is able to offer statements on his or her own behalf and shall be provided with timely opportunities and access to offer such statements, which shall be considered by the department if the child is capable and willing. In all matters relative to the care and protection of a child, the ability, fitness, and capacity of the child shall be considered in all department proceedings.

Grounds for Involuntary Termination of Parental Rights

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

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The Department of Children and Families shall file a petition to terminate parental rights under the following circumstances:

  • The child has been abandoned.
  • The parent has been convicted of the murder or voluntary manslaughter of another child of the parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter, or of a felony assault that resulted in serious bodily injury to the child or to another child of the parent.
  • The child has been in foster care for 15 of the immediately preceding 22 months.

In determining whether such action is in the best interests of the child, the court shall consider the ability, capacity, fitness, and readiness of the child’s parent. In considering the fitness of the child’s parent, the court shall consider, without limitation, the following factors:

  • The child has been abused or neglected as a result of the acts or omissions of one or both parents; the parents were offered services and have been unable to make a substantial change in the circumstances that led to the abuse or neglect.
  • The child has been in the custody of the department for at least 6 months, and the parents have not maintained significant and meaningful contact with the child.
  • The child is age 4 or older and has been in an out-of-home placement for at least 12 of the immediately preceding 15 months, and the child cannot be returned home.
  • The child is younger than age 4 and has been in an out-of-home placement for at least 6 of the immediately preceding 12 months and cannot be returned home.
  • The parent, without excuse, fails to provide proper care for the child, and there is a reasonable expectation that the parent will not be able to provide proper care within a reasonable time.
  • Because of the lengthy absence of the parent or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with a substitute caregiver, the removal of the child from the caregiver would likely cause serious psychological harm to the child, and the parent lacks the capacity to meet the special needs of the child upon removal.
  • There has been a lack of effort by the parent to remedy conditions that create a risk of harm due to abuse or neglect of the child.
  • There has been severe or repetitive conduct of a physically, emotionally, or sexually abusive or neglectful nature toward the child or toward another child in the home.
  • The parent has willfully failed to visit the child when the child has not been in his or her custody.
  • The parent has willfully failed to support the child when the child has not been in his or her custody. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child’s care when the contribution has been requested by the department or ordered by the court.
  • The parent suffers from a condition that is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent unlikely to provide minimally acceptable care for the child.
  • The parent has been convicted of a felony that the court finds is of such a nature that the child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for termination of parental rights.
  • There has been a prior pattern of parental neglect or misconduct or a felony assault that resulted in serious bodily injury to the child, and a likelihood of future harm to the child exists based on such prior pattern or assault.
Circumstances That Are Exceptions to Termination of Parental Rights

The department need not file a petition to terminate parental rights if:

  • The child is being cared for by a relative.
  • The department has documented in the case plan a compelling reason for determining that terminating the parents’ rights would not be in the best interests of the child.
  • The family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child’s home if reasonable efforts as set forth in § 29C are required to be made with respect to the child.
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

Any newborn infant 7 days old or younger may be relinquished.

Who May Relinquish the Infant

The infant may be relinquished by his or her parent.

Who May Receive the Infant

The infant may be delivered to any ‘designated facility,’ including a hospital, police department, or manned fire station.

Responsibilities of the Safe Haven Provider

The designated facility receiving a newborn infant shall immediately notify the Department of Social Services. Upon receipt of such notice, the department shall take immediate custody of the newborn infant and shall initiate all actions authorized by law to achieve the safety and permanent placement of the newborn infant in a manner that is consistent with the best interests of the child.

The person accepting a newborn infant shall make every effort to solicit the following information from the parent placing the newborn infant:

  • The name of the infant
  • The name and address of the parent placing the newborn infant
  • The location of the infant’s birthplace
  • Information relative to the infant’s medical history and his or her biological family’s medical history, if available
  • Any other information that might reasonably assist the department or the court in current or future determinations of the best interests of the child, including whether the parent or guardian plans on returning to seek future custody of the child

The person receiving the newborn infant shall encourage the parent to provide the information, but the parent shall not be required to provide such information.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent

Voluntary abandonment of an infant to an appropriate person shall not by itself constitute either a finding of abuse or neglect or a violation of any criminal statute for child abuse or neglect or for abandonment. If child abuse or neglect that is not based solely on the newborn infant having been left with an appropriate person is suspected, hospital, police, or fire department personnel who are mandated reporters shall report the abuse or neglect.

The parent is not required to supply any of the information requested above.

Effect on Parental Rights

The Department of Social Services shall place the infant into foster care. Such a voluntary placement shall not constitute, in and of itself, an automatic termination of parental rights or an abrogation of the parental rights or responsibilities but shall, for purposes of authorizing the department to initiate a petition to terminate parental rights under chapter 210, be presumed to be an abandonment of the newborn infant that has been so placed.

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘guardian’ means the individual, organization, or agency that has been appointed guardian of the person by a court of the Commonwealth, in accordance with chapter 190B of the statutes, or a court of competent jurisdiction in another State.

Purpose of Guardianship

The Department of Children and Families is committed to establishing permanent placements for all children in its care and custody. Pursuant to this commitment, the department may sponsor a guardianship for selected children. The children selected will be those who are not likely to return to their parents and who, for whatever reason, are not candidates for adoption.

The department shall consider sponsoring a guardianship for a child in its care or custody if the child meets all the following criteria:

  • The child will not be able to return to his or her biological parents. This determination is made by the department based upon the history of the case and the clinical judgment of department social work staff.
  • In the judgment of the department, there is no reasonable likelihood that the child will be adopted. This determination may be made by the department when, for example, the child is unwilling to be adopted, or when, in the clinical judgment of the department social work staff, adoption would not be in the child’s best interests.
  • The child has resided with the potential guardians for at least 1 year. This requirement may be waived if it is determined by the department to be in the best interests of the child.
  • The child is at least age 12. This requirement may be waived if it is determined by the department to be in the best interests of the child (for example, to keep sibling groups together).
A Guardian’s Rights and Responsibilities

A guardian has the powers and responsibilities of a parent regarding the child’s support, care, education, health, and welfare. A guardian shall act at all times in the child’s best interests and exercise reasonable care, diligence, and prudence.

A guardian of a child may:

  • Apply for and receive money for the support of the child that would be otherwise payable to the parent, guardian, or custodian
  • Consent to medical or other professional care, treatment, or advice for the child
  • Consent or refuse to consent to the marriage or adoption of the child
  • Utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to the child, including, but not limited to, counseling services, advocacy services, legal services, and other aid as the guardian deems to be in the interests of the child
Qualifying the Guardian

Before guardianship can be considered, the child must have resided with the potential guardians for at least 1 year. The placement of the child with the potential guardian must have been approved by the department as meeting department requirements, as set forth in regulation.

For a kinship or child-specific placement, the department shall require that a relative, extended family member, or individual chosen by the parent(s) meet the department’s requirements. The approval process for the potential guardian, all household members, and the guardian’s home shall include the following:

  • Criminal background and child abuse and neglect history checks on all household members age 14 and older, and on those younger about whom concerns exist
  • A home visit
  • A determination that the home meets the physical standards set forth in regulation
  • Interviews of all household members
Procedures for Establishing Guardianship

The department shall proceed to implement the guardianships it sponsors as follows:

  • The department determines that the child meets the criteria set forth above.
  • The child’s assigned social worker meets with the child and potential guardian. The guardianship plan is presented to them at this time for their consideration and approval.
  • If guardianship is acceptable to the child and potential guardian, the social worker will make reasonable and diligent efforts to contact the child’s parents. If the parents are contacted, they will be informed of the proposed guardianship proceeding, of their right to contest the guardianship proceeding, and of their right, if indigent, to court-appointed counsel. The parents’ consent will then be sought.
  • An employee of the legal staff of the department will prepare the appropriate court papers. If the parents of the child have consented, their consent shall be noted upon the court papers by obtaining their signature. If the parents of the child have not consented to the guardianship in writing, they will be given notice as required by law.
  • An employee of the legal staff of the department will initiate and prosecute all court proceedings necessary to finalize the guardianship. The guardianship plan will be presented to the court for review as part of the proceeding, and said plan shall address the appropriateness of the proposed placement and the suitability of the proposed guardians.
Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the child’s death, adoption, marriage, or attainment of majority. Termination shall not affect the guardian’s liability for prior acts or the obligation to account for funds and assets of the ward. Resignation of a guardian shall not terminate the guardianship until it has been approved by the court.

Eligibility for Guardianship Subsidy

If a child is placed under guardianship through the department, and the child does not receive support payments from any other State or Federal agency, then the child shall be eligible for continued support payments and/or medical assistance from the department, to the same extent as if the child had remained in foster care.

If a child is placed under guardianship through the department, and the child is receiving support payments from any other State or Federal agency, then the child will be eligible for support payments and/or medical assistance from the department, only to the extent that it would raise the total support from all sources to the amount the child would be receiving if he/she had remained in foster care.

Links to Agency Policies

Massachusetts Department of Children and Families, A Resource Guide for Massachusetts’ Grandparents Raising their Grandchildren (PDF – 411 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 child may be placed with a relative or long-term friend of the child’s family.

In regulation: The Department of Children and Families shall consider, consistent with the best interests of the child, the following placement resources in the following order:

  • Placement with a kinship family
  • Placement with a child-specific family
  • Placement in a family foster care home where the child was previously placed
  • Placement in family foster care
  • Placement in a shelter/short-term program or group home
  • Placement in community residential care

Whenever the department places a child in foster care, the department shall seek from the child’s parents the names of relatives or other kin who may be available to become a foster placement for the child. The department also shall begin a search for other relatives of the child or for other adult persons who have played a significant positive role in the child’s life in order to determine whether the child may appropriately be placed with a relative or person if, in the judgment of the department, that placement would be in the best interests of the child.

Within 30 days after the child is removed from the custody of the parent(s), the department shall provide notice to the kin and other suitable adults, unless the kin or other adult could not be approved as a foster parent due to known family or domestic violence. The notice shall include the following information:

  • That the child has been removed from the custody of the parents
  • The process for applying to become the child’s foster parent and the standards for becoming a foster parent
  • The availability of foster care payments and medical insurance for the child
  • The department’s process for considering kin placements when more than one kin applies at the same time
Requirements for Placement with Relatives

Prior approval of the home by the Department of Early Education and Care is not required for emergency foster placement of the child with a relative or long-term friend of the child’s family. Within 10 days of placement, a criminal offender record check must be performed on all persons age 18 or older who reside in the home.

In regulation: When considering a kinship or child-specific placement, the department shall require that the relative, extended family member, or individual chosen by parent(s) meet the department’s requirements, as set forth in title 110, §§ 7.104 and 7.105.

Requirements for Placement of Siblings

The department shall seek to identify any minor sibling or half-sibling of the child and attempt to place these children in the same foster family if, in the judgment of the department, that placement would be in the best interests of the children.

The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visits with siblings in other foster or preadoptive homes or in the homes of parents or extended family members throughout the period of placement, or after such placements, if the children or their siblings are separated through adoption or long-term or short-term placements in foster care.

Any child over age 12 may request to visit with siblings who have been separated and placed in care or have been adopted in a foster or adoptive home other than where the child resides.

In regulation: The department shall place a child with the child’s full- or half-sibling, unless doing so would be contrary to the safety or well-being of the child or sibling, or otherwise not in the child’s best interests. If siblings are not placed together, reasonable efforts will be made to provide for visits with siblings, unless such visits would be harmful to the child or sibling.

Relatives Who May Adopt

A child may not be placed with a person who is not related to that child by blood or marriage for purposes of adoption, unless the placement is made by a licensed or approved placement agency.

A person may adopt another person who is younger than himself or herself, unless that person is his or her spouse, sibling, uncle, or aunt.

Requirements for Adoption by Relatives

A review of the criminal offender record information shall be made to assist in evaluating the suitability of the adoptive parent.

In regulation: In the case of an individual seeking to serve as a preadoptive kinship placement for a child in the care or custody of the department, the department shall not be precluded from placing the child in a kinship home if the Commissioner, Deputy Commissioner for Field Operations, and General Counsel have conducted a review of the criminal records database pursuant to 110 CMR 18.11(9) and determined the placement is in the best interests 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 court shall determine the reasonable efforts to be made, consistent with the best interests of the child.

When Reasonable Efforts Are Required

Reasonable efforts shall be made:

  • Prior to placement to prevent or eliminate the need for removal from the home
  • To make it possible for a child to return safely to his or her parent or guardian
  • To place the child, in a timely manner, in accordance with the permanency plan if reasonable efforts to reunify the child with his or her parent or guardian are inconsistent with the permanency plan
When Reasonable Efforts Are NOT Required

Reasonable efforts shall not be required if the court finds:

  • The child has been abandoned.
  • The parent’s rights to another child have been involuntarily terminated.
  • The parent has been convicted of murder or voluntary manslaughter of another child of the parent or aiding or abetting in the commission of such crime.
  • The parent has been convicted of a felony assault resulting in serious bodily injury of the child or another child of the parent.
  • The parent has subjected the child to aggravated circumstances that may include murder of another parent of the child in the presence of the child, subjecting the child or other children in the home to sexual abuse or exploitation, or severe or repetitive conduct of a physically or emotionally abusive nature.

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

A parent may appoint a guardian for any minor child the parent has or may have in the future. A guardian may appoint a guardian for any minor child for whom the guardian serves.

How to Establish a Standby Guardian

A parent or guardian, by will or other writing signed by the parent or guardian and attested by at least two witnesses, may appoint a guardian for his or her minor child, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian.

Upon petition of an appointing parent or guardian, upon finding that the appointing parent or guardian will likely become unable to care for the minor within 2 years or less, and after notice as provided in § 5-206(b), the court, before the appointment becomes effective, may confirm the parent’s or guardian’s selection of a guardian and terminate the rights of others under § 5-203.

The minor child age 14 or older who is the subject of a parental appointment may prevent the appointment or cause it to terminate by filing in the court in which the appointing instrument is filed a written objection to the appointment before it is accepted or within 30 days after receiving notice of its acceptance.

How Standby Authority is Activated

The appointment of a guardian becomes effective on the first of the following to occur:

  • The appointing parent’s or guardian’s death
  • An adjudication that the parent or guardian is an incapacitated person
  • A written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the minor unless the minor is in the care or custody of a person other than a parent

Within 30 days after the appointment becomes effective, a guardian shall:

  • File a notice of acceptance of appointment and a copy of the will or other nominating instrument with the court of the county in which the will was or could be probated or, in the case of another nominating instrument, with the court of the county in which the minor resides
  • Unless the appointment was previously confirmed by the court, petition the court for confirmation of the appointment
Involvement of the Noncustodial Parent

Citation: Ann. Laws Ch. 190B, § 5-203
The child’s other parent, if that parent’s parental rights have not been terminated, may prevent the appointment or cause it to terminate by filing a written objection to the appointment in the court in which the appointing instrument is filed before it is accepted or within 30 days after receiving notice of its acceptance.

Authority Relationship of the Parent and the Standby

The parental appointment of a guardian shall not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged incapacitated has priority.

Withdrawing Guardianship

The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court, the revocation of the appointment by the appointing parent or guardian, or the filing of an objection pursuant to § 5-203.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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

9th Circuit

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US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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