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

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

Michigan

 

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.

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Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Child abuse’ means harm or threatened harm to a child’s health or welfare that occurs through nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment by a parent, a legal guardian, or any other person responsible for the child’s health or welfare or by a teacher, a teacher’s aide, or a member of the clergy.

‘Severe physical injury’ means an injury to the child that requires medical treatment or hospitalization and that seriously impairs the child’s health or physical well-being.

Neglect

‘Child neglect’ means harm or threatened harm to a child’s health or welfare, by a parent, legal guardian, or any other person responsible for the child’s health or welfare, that occurs through either of the following:

  • Negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care
  • Placing a child at an unreasonable risk to the child’s health or welfare by failure to intervene to eliminate that risk when the parent, legal guardian, or other person responsible for the child’s health or welfare is able to do so and has, or should have, knowledge of the risk
Sexual Abuse/Exploitation

‘Sexual abuse’ means engaging in sexual contact or sexual penetration with a child as those terms are defined in the penal code.

‘Sexual exploitation’ includes allowing, permitting, or encouraging a child to engage in prostitution, or allowing, permitting, encouraging, or engaging in photographing, filming, or depicting a child engaged in a sexual act.

Emotional Abuse

The term ‘child abuse’ includes mental injury.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Comp. Laws § 722.623
A report is required when a mandatory reporter has reasonable cause to suspect child abuse or neglect.

Persons Responsible for the Child

A ‘person responsible for the child’s health or welfare’ means a parent; legal guardian; person age 18 or older who resides for any length of time in the same home as the child; nonparent adult; or an owner, operator, volunteer, or employee of one or more of the following:

  • A licensed or registered child care organization
  • A licensed or unlicensed adult foster care family home or adult foster care small group home
  • A court-operated facility

‘Nonparent adult’ means a person who is age 18 or older and who, regardless of the person’s domicile, meets all of the following criteria in relation to a child:

  • Has substantial and regular contact with the child
  • Has a close personal relationship with the child’s parent or with a person responsible for the child’s health or welfare
  • Is not the child’s parent or a person otherwise related to the child by blood or affinity to the third degree
Exceptions

A parent or guardian legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian. This section shall not preclude a court from ordering the provision of medical services or nonmedical remedial services recognized by State law to a child when the child’s health requires it, nor does it abrogate the responsibility of a person required to report child abuse or neglect.

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Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means the occurrence of any of the following acts by a person that is not an act of self-defense:

  • Causing or attempting to cause physical or mental harm to a family or household member
  • Placing a family or household member in fear of physical or mental harm
  • Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress
  • Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

An individual who assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household is guilty of a misdemeanor.

An individual who commits an assault or an assault and battery and who has two or more previous convictions for assaulting or assaulting and battering his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household is guilty of a felony.

An individual who assaults his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of the same household without a weapon and inflicts serious or aggravated injury upon that individual without intending to commit murder or to inflict great bodily harm less than murder is guilty of a misdemeanor.

An individual who commits an aggravated assault and battery and who has one or more previous convictions for assaulting or assaulting and battering his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of the same household is guilty of a felony.

Persons Included in the Definition

‘Family or household member’ includes any of the following:

  • A spouse or former spouse
  • An individual with whom the person resides or has resided
  • An individual with whom the person has or had a dating relationship
  • An individual with whom the person is or has engaged in a sexual relationship
  • An individual to whom the person is related or was formerly related by marriage
  • An individual with whom the person has a child in common
  • The minor child of an individual described above

‘Dating relationship’ means frequent, intimate associations primarily characterized by the expectation of affectional involvement. ‘Dating relationship’ does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context.

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Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

A person acting in good faith who makes a report, cooperates in an investigation, or assists in any other requirement pursuant to the reporting laws is immune from civil or criminal liability that might otherwise be incurred by that action.

A person making a report or assisting in any other requirement of the reporting laws is presumed to have acted in good faith.

This immunity from civil or criminal liability extends only to acts done according to the reporting laws and does not extend to a negligent act that causes personal injury or death, or to the malpractice of a physician that results in personal injury or death.

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Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the Family Independence Agency (department). Within 72 hours after making the oral report, the reporting person shall file a written report.

Content of Reports

The written report shall contain:

  • The name of the child and a description of the abuse or neglect
  • If possible, the names and addresses of the child’s parents, guardian, or persons with whom the child resides, and the child’s age
  • Other information available to the reporting person that might establish the cause of the abuse or neglect, and the manner in which the abuse or neglect occurred
Reporting Suspicious Deaths

If a central registry case involves a child’s death, the department shall refer the case to the prosecuting attorney for the county in which the child is located.

Reporting Substance-Exposed Infants

A mandated reporter who knows, or from the child’s symptoms has reasonable cause to suspect, that a newborn infant has any amount of alcohol, a controlled substance, or a metabolite of a controlled substance in his or her body, shall report to the department in the same manner as other reports.

Agency Receiving the Reports

The written report required in this section shall be mailed or otherwise transmitted to the county department of the county in which the child suspected of being abused or neglected is found.

Upon receipt of a written report of suspected child abuse or neglect, the department may provide copies to the prosecuting attorney and the probate court of the counties in which the child suspected of being abused or neglected resides and is found.

Initial Screening Decisions

Intake begins when a complaint alleging child abuse and/or neglect is received by the department. The intake process is focused on initial fact gathering and evaluation of information to determine the validity of the complaint and to assess the level of risk to the child. Evaluation of the complaint information determines the nature and priority of the initial response.

In order for a report to be assigned for Child Protective Services (CPS) investigation, the complaint allegations must minimally meet the child protection law definitions of child abuse and/or neglect to be appropriate for assignment. The elements that must be present in order to assign a complaint for investigation include allegations of harm or threatened harm to a child’s health or welfare through nonaccidental or neglectful behavior by a person responsible for the child’s health and welfare.

Agency Conducting the Assessment/Investigation

Within 24 hours after receiving a report, the department shall refer the report to the prosecuting attorney and the local law enforcement agency if the report indicates that the suspected abuse or neglect was a criminal act, was committed by an individual who is not a person responsible for the child’s health or welfare, or involves allowing a child to be exposed to methamphetamine production, or shall commence an investigation of the child suspected of being abused or neglected or exposed to or who has had contact with methamphetamine production.

In conducting its investigation, the department shall seek the assistance of and cooperate with law enforcement officials within 24 hours after becoming aware that one or more of the following conditions exist:

  • Abuse or neglect is the suspected cause of a child’s death.
  • The child is the victim of suspected sexual abuse or sexual exploitation.
  • Abuse or neglect resulting in severe physical injury to the child requires medical treatment or hospitalization.
  • Law enforcement intervention is necessary for the protection of the child, a department employee, or another person involved in the investigation.
  • The alleged perpetrator of the child’s injury is not a person responsible for the child’s health or welfare.
  • The child has been exposed to or had contact with methamphetamine production.

Involvement of law enforcement officials under this section does not relieve or prevent the department from proceeding with its investigation or treatment if there is reasonable cause to suspect that the child abuse or neglect was committed by a person responsible for the child’s health or welfare.

Assessment/Investigation Procedures

At the time that an investigator contacts an individual about whom a report has been made, the investigator shall advise that individual of the investigator’s name, whom the investigator represents, and the specific complaints or allegations made against the individual.

In the course of its investigation, the department shall determine if the child is abused or neglected.

In regulation: CPS must:

  • Take prompt action on every complaint assigned for investigation
  • Commence the investigation within 24 hours
  • Assess child safety and the services needs of the family
  • Include contacts with the reporting person, the family, and other informational sources, as needed, for verification of the accuracy of the complaint and clarification of the situation
  • Observe the scene (at the home or a location other than the home) where the alleged abuse/neglect occurred, as well as any objects alleged to have been involved
  • Observe and document each caregiver and alleged perpetrator’s photo identification
  • Verify and document the dates of birth given by all adults living within the home, including, but not limited to, noncustodial and putative parents, as well as any adults associated with the case
  • Conduct a thorough inquiry of family background, including a central registry clearance on parents and all persons listed on the complaint who are age 18 or older and a criminal history check
Timeframes for Completing Investigations

Investigation must be completed 30 days from the department’s receipt of the complaint. This includes completion of the safety assessment, risk assessment, and family and child assessments of needs and strengths.

Classification of Reports

Allegations of child abuse may be classified as follows:

  • Category V: Services not needed. There is no evidence of child abuse or neglect.
  • Category IV: Community services recommended. There is not a preponderance of evidence of child abuse or neglect, but there is an indication of future risk of harm to the child.
  • Category III: Community services needed. There is a preponderance of evidence of child abuse or neglect and an indication of low or moderate risk of future harm to the child.
  • Category II: Child protective services required. There is evidence of child abuse or neglect and an indication of high or intensive risk of future harm to the child. The department shall open a protective services case, provide services, and list the perpetrator on the central registry.
  • Category I: Court petition required. There is evidence of child abuse or neglect, the child is not safe, and a petition for removal is needed.

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Parental Drug Use as Child Abuse

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Current Through April 2016

A person who is required to report suspected child abuse or neglect and who knows, or from the child’s symptoms has reasonable cause to suspect, that a newborn infant has any amount of alcohol, a controlled substance, or a metabolite of a controlled substance in his or her body shall report to the department in the same manner as required of other reports.

A report is not required under this section if the person knows that the alcohol, controlled substance, or metabolite, or the child’s symptoms, are the result of medical treatment administered to the newborn infant or his or her mother.

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Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In each case filed under the child protection act in which judicial proceedings are necessary, the court shall appoint a lawyer-guardian ad litem (GAL) to represent the child. A lawyer-GAL represents the child and has powers and duties in relation to that representation as set forth in § 712A.17d.

If, after discussion between the child and his or her lawyer-GAL, the lawyer-GAL determines that the child’s interests as identified by the child are inconsistent with the lawyer-GAL’s determination of the child’s best interests, the lawyer-GAL shall communicate the child’s position to the court. If the court considers the appointment appropriate considering the child’s age and maturity and the nature of the inconsistency between the child’s and the lawyer-GAL’s identification of the child’s interests, the court may appoint an attorney for the child. An attorney appointed under this subsection serves in addition to the child’s lawyer-GAL.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The lawyer-GAL shall participate in training in early childhood, child, and adolescent development.

Specific Duties

A lawyer-GAL’s duty is to the child and not the court. The lawyer-GAL’s powers and duties include at least the following:

  • To serve as the independent representative for the child’s best interests and be entitled to full and active participation in all aspects of the litigation and access to all relevant information regarding the child
  • To determine the facts of the case by conducting an independent investigation, including, but not limited to, interviewing the child, social workers, family members, and others as necessary, and reviewing relevant reports and other information
  • To meet with or observe the child and assess the child’s needs and wishes with regard to the representation and the issues in the case before all hearings
  • To explain to the child, taking into account the child’s ability to understand the proceedings, the lawyer-GAL’s role
  • To file all necessary pleadings and papers and independently call witnesses on the child’s behalf
  • To attend all hearings and substitute representation for the child only with court approval
  • To make a determination regarding the child’s best interests and advocate for those best interests, regardless of whether the lawyer-GAL’s determination reflects the child’s wishes
  • To inform the court of the child’s wishes and preferences
  • To monitor the implementation of case plans and court orders and determine whether services the court ordered for the child or the child’s family are being provided in a timely manner and are accomplishing their purpose
  • To identify common interests among the parties and, to the extent possible, promote a cooperative resolution of the matter through consultation with the child’s parent, foster care provider, guardian, and caseworker
  • To request authorization by the court to pursue issues on the child’s behalf that do not arise specifically from the court appointment

The agency case file shall be reviewed before disposition and before the hearing for termination of parental rights. Updated materials shall be reviewed as provided to the court and parties. The supervising agency shall provide documentation of progress relating to all aspects of the last court-ordered treatment plan, including copies of evaluations and therapy reports and verification of parenting time not later than 5 business days before the scheduled hearing.

The child’s wishes are relevant to the lawyer-GAL’s determination of the child’s best interests, and the lawyer-GAL shall weigh the child’s wishes according to the child’s competence and maturity. Consistent with the law governing attorney-client privilege, the lawyer-GAL shall inform the court as to the child’s wishes and preferences.

The lawyer-GAL shall inform the court if services are not being provided in a timely manner, if the family fails to take advantage of services, or if the services provided are not accomplishing their intended purpose.

How the Representative Is Compensated

If the court appoints an attorney to represent a juvenile, parent, guardian, or custodian, the court may require in an order entered under this section that the juvenile, parent, guardian, or custodian reimburse the court for attorney fees.

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Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Before the court enters an order of disposition, the agency shall prepare a case service plan that shall be available to the court and all the parties to the proceeding.

Who May Participate in the Case Planning Process

The case service plan shall be developed by an agency and shall include services to be provided by and responsibilities and obligations of the agency, as well as activities, responsibilities, and obligations of the parent.

The case service plan may be referred to using names different from ‘case service plan’ including, but not limited to, a parent/agency agreement, a parent/agency treatment plan, or a service agreement.

In policy: Casework service requires the engagement of the family in development of the case service plan. This engagement must include an open conversation between all parents/guardians and the caseworker in:

  • Discussing needs and strengths
  • Establishing the case service plan
  • Reaching an understanding of what is required to meet the goals of the case service plan
  • Discussing concurrent permanency planning

Parental participation in case service plan development is required. Parental engagement is an invaluable tool for achieving an early return home for children in foster care. Parents must be encouraged to actively participate in developing the Parent-Agency Treatment Plan and Service Agreement section of the case service plan.

Contents of a Case Plan

The case service plan shall provide for placing the child in the most familylike setting available and in as close proximity to the child’s parents’ home as is consistent with the child’s best interests and special needs. The case service plan shall include, but is not limited to, the following:

  • The type of home or institution in which the child is to be placed and the reasons for the selected placement
  • Efforts to be made by the child’s parent to enable the child to return to his or her home
  • Efforts to be made by the agency to return the child to his or her home
  • The schedule of services to be provided to the parent, the child, and if the child is to be placed in foster care, the foster parent, to facilitate the child’s return to his or her home or to facilitate the child’s permanent placement
  • Unless parenting time, even if supervised, would be harmful to the child as determined by the court, a schedule for regular and frequent parenting time between the child and his or her parent, which shall not be less than once every 7 days
  • Conditions that would limit or preclude placement or parenting time with a parent who is required by court order to register under the sex offenders registration act

In policy: The Parent-Agency Treatment Plan and Service Agreement section of the case service plan must state specifically what the parents will need to do to achieve reunification and what the agency will do in support of parental objectives. The parent-agency treatment plan and service agreement must be:

  • Specific to the individual needs of the family and children
  • Inclusive of the family’s viewpoint
  • Written in a manner that is easily understood by all parties

There must be a plan for ensuring that each child who is placed out of his or her own home receives safe and proper care and services. The plan must include documentation of all of the following:

  • The services provided to the parents, child, and foster parent or relative caregivers in order to improve the conditions in the parent’s home to facilitate a safe return of the child to his or her own home or the permanent placement of the child
  • The needs of the children while in foster care
  • The services to the children and foster parents or relative caregivers to meet those needs
  • The appropriateness of the services that have been provided to the child
  • A statement that safe and proper care and services must be provided

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Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

Review hearings shall be held:

  • No more than 182 days after the child is place under the jurisdiction of the court
  • Every 91 days after that for the first year that the child remains in care
  • After the first year, no later than 182 days from the immediately preceding review hearing and every 182 days thereafter until the case is dismissed
  • Every 182 days if the child is in a permanent foster family agreement or placed with a relative

A permanency hearing shall be held:

  • Within 12 months if a child remains in foster care and parental rights to the child have not been terminated
  • Every 12 months thereafter during the continuation of foster care
  • Within 30 days after a judicial determination that reasonable efforts to reunite the child and family are not required
Persons Entitled to Attend Hearings


Written notice of the permanency hearing and a statement of the purposes of the hearing, including a notice that the hearing may result in further proceedings to terminate parental rights, shall be served upon all of the following:

  • The agency
  • The foster parent or custodian of the child
  • If the parental rights to the child have not been terminated, the child’s parents
  • If the child has a guardian, the guardian for the child
  • If the child has a guardian ad litem, the guardian ad litem
  • If Tribal affiliation has been determined, the elected leader of the Indian Tribe
  • The attorney for the child, the attorneys for each party, and the prosecuting attorney if the prosecuting attorney has appeared in the case
  • If the child is age 11 or older, the child
  • Other persons as the court may direct

Written notice of a review hearing shall be served upon all of the above. In addition, if a nonparent adult is required to comply with the case service plan, the nonparent adult must receive notice.

Determinations Made at Hearings

At a review hearing, the court shall review on the record all of the following:

  • Compliance with the case service plan including the services provided or offered to the child and the child’s parent
  • Compliance with the case service plan with respect to parenting time with the child
  • Likely harm to the child if the child continues to be separated from the child’s parent, guardian, or custodian
  • Likely harm to the child if the child is returned to the child’s parent, guardian, or custodian
  • The extent of progress made toward alleviating or mitigating the conditions that caused the child to be placed in foster care
  • The continuing necessity and appropriateness of the child’s placement

At the permanency planning hearing, the court shall:

  • Review the status of the child and the progress being made toward the child’s return home
  • Consider whether the child should be placed in the permanent custody of the court
  • Obtain the child’s views regarding the permanency plan in a manner that is appropriate to the child’s age
  • In the case of a child who will not be returned home, consider in-State and out-of-State placement options
  • In the case of a child placed out-of-State, determine whether the out-of-State placement continues to be appropriate and in the child’s best interests
  • Ensure that the agency is providing appropriate services to assist a child who will transition from foster care to independent living
Permanency Options

The court may consider the following permanency options:

  • Return to the parent
  • Adoption or other permanent placement
  • Appointment of a legal guardian
  • If termination of parental rights is not in the child’s best interest, an alternative placement plan, including limited or long-term foster care

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Determining the Best Interests of the Child

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

Current Through March 2016

As used in the act, ‘best interests of the child’ means the sum total of the following factors to be considered, evaluated, and determined by the court:

  • The love, affection, and other emotional ties existing between the parties involved and the child
  • The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any
  • The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this State in place of medical care and other material needs
  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
  • The permanence, as a family unit, of the existing or proposed custodial home or homes
  • The moral fitness of the parties involved
  • The mental and physical health of the parties involved
  • The home, school, and community record of the child
  • The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference
  • The willingness of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and parents
  • Domestic violence, regardless of whether the violence was directed against or witnessed by the child
  • Any other factor considered by the court to be relevant to a particular child custody dispute

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Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may terminate a parent’s parental rights if the court finds, by clear and convincing evidence, one or more of the following:

  • The child has been deserted.
  • The child or child’s sibling has suffered physical injury or physical or sexual abuse under one or more of the following circumstances:
    • The parent’s act caused the abuse.
    • The parent had the opportunity to prevent the abuse and failed to do so.
    • A nonparent adult caused the abuse, and there is a reasonable likelihood that the child will suffer from injury or abuse by the nonparent adult in the foreseeable future if placed in the parent’s home.
  • The parent has failed to correct the conditions that led to an adjudication of child abuse or neglect, and there is no reasonable likelihood that the conditions will be corrected within a reasonable time considering the child’s age.
  • The parent has substantially failed, without good cause, to comply with a limited guardianship placement plan to the extent that the noncompliance has resulted in a disruption of the parent-child relationship.
  • The child has a guardian, and both of the following have occurred:
    • The parent has failed, without good cause, to provide regular and substantial support for the child for 2 years or more.
    • The parent has failed to regularly visit, contact, or communicate with the child, without good cause, for 2 years or more.
  • The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
  • The parent is imprisoned for such a period that the child will be deprived of a normal home for more than 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
  • The parent’s parental rights to one or more siblings of the child or another child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parent has been unsuccessful.
  • There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.
  • The parent abused the child or a sibling of the child and the abuse included one or more of the following:
    • Abandonment of a young child
    • Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate
    • Battering, torture, or other severe physical abuse
    • Loss or serious impairment of an organ or limb
    • Life threatening injury
    • Murder or voluntary manslaughter
    • Aiding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter
Circumstances That Are Exceptions to Termination of Parental Rights

If the child has been in foster care under the responsibility of the State for 15 of the most recent 22 months, the court shall order the agency to initiate proceedings to terminate parental rights. The court is not required to order the agency to initiate proceedings to terminate parental rights if one or more of the following apply:

  • The child is being cared for by relatives.
  • The case service plan documents a compelling reason for determining that filing a petition to terminate parental rights would not be in the best interests of the child. Compelling reasons for not filing a petition to terminate parental rights include, but are not limited to, all of the following:
    • Adoption is not the appropriate permanency goal for the child.
    • No grounds to file a petition to terminate parental rights exist.
    • The child is an unaccompanied refugee minor, as defined in 45 CFR 400.11.
    • There are international legal obligations or compelling foreign policy reasons that preclude terminating parental rights.
  • The State has not provided the child’s family, consistent with the time period in the case service plan, with the services the State considers necessary for the child’s safe return to his or her home, if reasonable efforts are required.
Circumstances Allowing Reinstatement of Parental Rights

The court in all cases involving custody shall state in the order for disposition or any supplemental order of disposition whether the child is placed in the temporary or permanent custody of the court. If the child is placed in the permanent custody of the court, all parental rights are terminated, though such rights may be reinstated by a supplemental order of disposition after rehearing pursuant to § 712A.21.

At any time while the juvenile is under the jurisdiction of the court, an interested person may file a petition for a rehearing upon all matters coming within the provisions of this chapter. Upon the rehearing, the court may affirm, modify, or set aside any order reviewed under this section. If parental rights have been terminated by an order entered in the proceedings and custody of the juvenile has been removed from the parents, guardian, or other person, the petition for rehearing shall be filed no later than 20 days after the date of entry of the order terminating parental rights. The petition shall set forth in detail the place, manner, and all other information requested by the court in reference to the proposed future custody of the juvenile. The rehearing shall be conducted in accordance with the provisions of this chapter relating to the conduct of original hearings. The court may enter an order for supplemental disposition while the juvenile remains under the court’s jurisdiction.

The term ‘interested person’ includes a member of a local foster care review board to which that juvenile’s case has been assigned.

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Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A newborn may be relinquished. The term ‘newborn’ means a child who a physician reasonably believes to be not more than 72 hours old.

Who May Relinquish the Infant

A parent may surrender the child. The term ‘surrender’ means to leave a newborn with an emergency service provider without expressing an intent to return for the newborn.

Who May Receive the Infant

The infant may be surrendered to an emergency service provider. An emergency service provider includes a uniformed or otherwise identified employee or contractor of a fire department, hospital, or police station when that individual is inside the premises and on duty. Emergency service provider also includes a paramedic or an emergency medical technician when either of those individuals is responding to a 911 emergency call.

Responsibilities of the Safe Haven Provider

The safe haven provider will do all of the following:

  • Take the child into temporary protective custody
  • Provide the child with any necessary care and transport the child to a hospital if necessary
  • Inform the parent that by surrendering the child, he or she is relinquishing rights to the child to a child-placing agency for adoption
  • Provide written material that informs the parent about rights and available services
  • Encourage the parent to provide family and medical information
  • Notify a child-placing agency about the child
  • Make a child protection report if abuse of the child is suspected or if the examining physician suspects that the child is not a newborn
Immunity for the Provider

A hospital and a child-placing agency, and their agents and employees, are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this chapter, except for an act or omission constituting gross negligence or willful or wanton misconduct. To the extent not protected by the immunity conferred by §§ 691.1401 to 691.1415, an employee or contractor of a fire department or police station has the same immunity that this subsection provides to a hospital’s or child-placing agency’s agent or employee.

Protection for Relinquishing Parent

Information the parent provides to an emergency service provider will not be made public.

Except for a situation involving actual or suspected child abuse or child neglect, it is an affirmative defense to a prosecution for child abandonment that the child was not more than 72 hours old and was surrendered to an emergency service provider. A criminal investigation shall not be initiated solely on the basis of a newborn being surrendered to an emergency service provider.

Effect on Parental Rights

By surrendering the newborn, the parent is releasing the newborn to a child-placing agency to be placed for adoption.

The parent has 28 days after surrendering the newborn to petition the court to regain custody of the newborn. After the 28-day period to petition for custody elapses, there will be a hearing to determine and terminate parental rights.

There will be public notice of this hearing, and the notice will not contain the parent’s name. The parent will not receive personal notice of this hearing.

A parent who surrenders a newborn and does not file a custody action is presumed to have knowingly released his or her parental rights to the newborn. If the court finds by a preponderance of the evidence that the surrendering parent has knowingly released his or her rights to the child and that reasonable efforts were made to locate the nonsurrendering parent and a custody action has not been filed, the court shall enter an order terminating parental rights of the surrendering parent and the nonsurrendering parent.

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Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means a person appointed by the court to act as a legal guardian for a child under § 712A.19a and 712A.19c.

The term ‘relative’ means an individual who is at least age 18 and related to the child by blood, marriage, or adoption, as grandparent, great-grandparent, great-great-grandparent, aunt or uncle, great-aunt or great-uncle, great-great-aunt or great-great-uncle, sibling, stepsibling, nephew or niece, first cousin or first cousin once removed, or the spouse of any of the above, even after the marriage has ended by death or divorce. The parent of a man who the court has found probable cause to believe is the putative father, if there is no man with legally established rights to the child, may be considered a relative under this act, but this is not to be considered as a finding of paternity and does not confer legal standing on the putative father.

Purpose of Guardianship

Juvenile guardianship is available for temporary and permanent court wards and State wards when reunification and adoption have been ruled out as permanency goals. The court, at a permanency planning hearing, may appoint a juvenile legal guardian for a child in lieu of terminating parental rights or returning the child home.

A Guardian’s Rights and Responsibilities

A child’s guardian has the powers and responsibilities of a parent who is not deprived of custody of the parent’s child, except that a guardian is not legally obligated to provide for the child from the guardian’s own money and is not liable to third persons by reason of the parental relationship for the child’s acts.

The guardian shall facilitate the child’s education and social or other activities, and shall authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the child resulting from the negligence or acts of third persons unless it would be illegal for a parent to have consented.

A guardian may consent to the child’s marriage or adoption.

A guardian must report the condition of the child and of the child’s estate that is subject to the guardian’s possession or control as ordered by the court on petition of a person interested in the child’s welfare or as required by court rule. The report must detail the condition of the child, medical or mental health treatment or care to which the child was subjected, and what reason, if any, exists for the continuation of the guardianship.

Qualifying the Guardian

If a child is placed in a guardian’s or a proposed guardian’s home, the court shall order the Department of Human Services to perform an investigation and file a written report of the investigation for a review. The court shall order the department to do all of the following:

  • Perform a criminal record check within 7 days
  • Perform a central registry clearance within 7 days
  • Perform a home study and file a copy of the home study with the court within 30 days, unless a home study has been performed within the immediately preceding year

If a home study has been performed within the immediately preceding year, a copy of that home study shall be submitted to the court.

The guardian who receives guardianship assistance must be a licensed foster parent. The approval process shall include criminal record checks and child abuse and neglect central registry checks on the guardian and all adults living in the guardian’s home, as well as fingerprint-based criminal record checks on the guardian.

Procedures for Establishing Guardianship

If the court determines at a permanency planning hearing that a child should not be returned to his or her parent, the court may order the agency to initiate proceedings to terminate parental rights. This is not required if the child is being cared for by relatives or adoption has been ruled out as an appropriate permanency goal for the child.

If the agency demonstrates that initiating the termination of parental rights to the child is clearly not in the child’s best interests, or the court does not order the agency to initiate termination of parental rights to the child, then the court, if the court determines that it is in the child’s best interests, may appoint a guardian for the child. The guardianship may continue until the child is emancipated.

Contents of a Guardianship Order

Legal guardianship is a judicially created relationship, as provided for under §§ 712A.19a and 712A.19c, between the child and his or her guardian that is intended to be permanent and self-sustaining as evidenced by the transfer to the guardian the following parental rights with respect to the child:

  • Protection
  • Education
  • Care and control of the person
  • Custody of the person
  • Decision-making
Modification/Revocation of Guardianship

The court’s jurisdiction over a guardianship created under this section shall continue until released by court order. The court shall review a guardianship annually and may conduct additional reviews as the court considers necessary. The court may order the department or a court employee to conduct an investigation and file a written report of the investigation.

In making the determinations under this section, the court shall consider any written or oral information concerning the child from the child’s parent, guardian, custodian, foster parent, child-caring institution, relative with whom the child is placed, or guardian ad litem, in addition to any other evidence, including the appropriateness of parenting time, offered at the hearing.

The court may, on its own motion or upon petition from the department or the child’s lawyer guardian ad litem, hold a hearing to determine whether a guardianship appointed under this section shall be revoked.

A guardian may petition the court for permission to terminate the guardianship. A petition may include a request for appointment of a successor guardian.

After notice and hearing on a petition for revocation or permission to terminate the guardianship, if the court finds by a preponderance of evidence that continuation of the guardianship is not in the child’s best interests, the court shall revoke or terminate the guardianship and appoint a successor guardian or restore temporary legal custody to the department.

Eligibility for Guardianship Subsidy

A child is eligible to receive guardianship assistance if it is determined that all of the following apply:

  • The child has been removed from home, and a court has found that remaining at home would be contrary to the child’s welfare.
  • The child has lived in the home of the prospective guardian for at least 6 consecutive months.
  • Reunification or placing the child for adoption is not an appropriate option.
  • The child has a strong attachment to the guardian, and the guardian has a strong commitment to caring permanently for the child.
  • If the child has reached age 14, he or she has been consulted regarding the guardianship.

A guardian who meets all of the following criteria may receive guardianship assistance on behalf of an eligible child:

  • The guardian is the child’s relative or legal custodian.
  • The guardian is a licensed foster parent and approved for guardianship assistance by the department.
  • The child has resided with the guardian in his or her home for a minimum of 6 months before the applying for guardianship assistance.

Only a relative who is a licensed foster parent caring for a child who is eligible to receive title IV-E-funded foster care payments for 6 consecutive months is eligible for Federal funding under title IV-E for guardianship assistance. A child who is not eligible for title IV-E funding is placed with a licensed foster parent, related or unrelated, may be eligible for State-funded guardianship assistance.

If a child is eligible for title IV-E-funded guardianship assistance has a sibling who is not eligible, both of the following apply:

  • The child and any of the child’s siblings may be placed in the same relative guardianship arrangement if the department and the relative agree on the appropriateness of the arrangement for the sibling.
  • Title IV-E-funded relative guardianship assistance payments may be paid on behalf of each sibling placed in the home.
Links to Agency Policies

Michigan Department of Human Services:

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Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘relative’ means an individual who is related to the child within the fifth degree by marriage, blood, or adoption.

Before determining placement of a child in its care, a supervising agency shall give special consideration and preference to a child’s relative or relatives who are willing to care for the child; are fit to do so; and would meet the child’s developmental, emotional, and physical needs. The supervising agency’s placement decision shall be made in the best interests of the child.

Requirements for Placement with Relatives

Upon removal of the child from the home, the supervising agency shall, within 30 days, determine placement with a fit and appropriate relative who would meet the child’s developmental, emotional, and physical needs as an alternative to foster care.

The notification of relatives shall do all of the following:

  • Specify that the child has been removed from the custody of the child’s parent
  • Explain the options the relative has to participate in the care and placement of the child, including any option that may be lost by failing to respond to the notification
  • Describe the requirements and benefits, including the amount of monetary benefits, of becoming a licensed foster family home
  • Describe how the relative may subsequently enter into an agreement with the department for guardianship assistance
Requirements for Placement of Siblings

Upon the recommendation of a local foster care review board or a child-placing agency, the department may grant a variance to one or more licensing rules or statutes regulating foster family homes or foster family group homes to allow the child and one or more siblings to remain or be placed together. If the department determines that such a placement would be in the child’s best interests and that the variance from the particular licensing rules or statutes would not jeopardize the health or safety of a child residing in the foster family home or foster family group home, the department may grant the variance.

In regulation: In selecting an appropriate placement for a child, an agency shall consider the following factors:

  • The permanency goal for the child
  • The physical, emotional, and educational needs of the child
  • The expressed preferences of the foster child
  • Placement of the child with relatives
  • Placement of the child with siblings
  • The continuity of relationships, including relationships with parents, siblings, relatives, foster parents, and other persons significant to the child
Relatives Who May Adopt

A relative is a person related to the child within the fifth degree through blood, marriage, or adoption. This also includes a stepparent.

A parent or guardian having legal and physical custody of a child may make a formal placement of the child for adoption with a stepparent or a relative under section 51 of this chapter.

Requirements for Adoption by Relatives

A written report containing nonidentifying and other relevant information about the child is not necessary when the child is adopted by a relative.

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

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Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts are measures taken to preserve and reunify the family and may include:

  • Efforts to be made by the parents
  • Efforts to be made by the agency
  • A schedule of services to be provided, including in-home services
  • A schedule of parenting time between the child and the parent, if appropriate
When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent the child’s removal from his or her home
  • To rectify conditions that caused removal of the child from his or her home
When Reasonable Efforts Are NOT Required

Reasonable efforts to reunify the child and family must be made in all cases, except when any of the following apply:

  • There is a judicial determination that the parent has subjected the child to aggravated circumstances, as provided in § 722.638, including:
    • Abandonment of a young child
    • Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate
    • Battering, torture, or other severe physical abuse
    • Loss or serious impairment of an organ or limb
    • Life-threatening injury
  • The parent has been convicted of one or more of the following:
    • Murder of another child of the parent
    • Voluntary manslaughter of another child of the parent
    • Aiding or abetting in the murder or voluntary manslaughter of another child of the parent, the attempted murder of the child or another child of the parent, or the conspiracy or solicitation to commit the murder of the child or another child of the parent
    • A felony assault that results in serious bodily injury to the child or another child of the parent
  • The parent is required by court order to register under the sex offenders registration act.
  • The parent has had rights to the child’s siblings involuntarily terminated.

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Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

The court may appoint a limited guardian for an unmarried minor upon the petition of the minor’s parent or parents.

How to Establish a Standby Guardian

The court may appoint a limited guardian for an unmarried minor upon the petition of the minor’s parent or parents if all of the following requirements are met:

  • The parents with custody of the minor consent or, in the case of only one parent having custody of the minor, the sole parent consents to the appointment of a limited guardian.
  • The parent or parents voluntarily consent to the suspension of their parental rights.
  • The court approves a limited guardianship placement plan agreed to by both of the following parties:
    • The parents with custody of the minor or, in the case of only one parent having custody of the minor, the sole parent who has custody of the minor
    • The person or persons whom the court will appoint as the minor’s limited guardian
How Standby Authority is Activated

The parent or parents of a minor who desire to have the court appoint a limited guardian and the person or persons who desire to be appointed the limited guardian must develop a limited guardianship placement plan, using a form given by the State court administrator. A limited guardianship placement plan form must include a notice that informs a parent who is a party to the plan that substantial failure to comply with the plan without good cause may result in the termination of the parent’s parental rights.

The proposed limited guardianship placement plan shall be attached to the petition requesting the court to appoint a limited guardian. The limited guardianship placement plan shall include provisions concerning all of the following:

  • The reason the parent or parents are requesting the court to appoint a limited guardian for the minor
  • Parenting time and contact with the minor by his or her parent or parents sufficient to maintain a parent and child relationship
  • The duration of the limited guardianship
  • Financial support for the minor
  • Any other provisions that the parties agree to include in the plan
Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

The limited guardianship placement plan shall provide for parenting time and contact with the minor by his or her parent or parents sufficient to maintain a parent and child relationship.

A limited guardian appointed under this section has all of the powers and duties enumerated in § 5215 except that a minor’s limited guardian shall not consent to marriage or adoption of the minor ward or to the release of the minor ward for adoption.

Withdrawing Guardianship

The voluntary suspension of parental rights under § 5205 does not prevent the parent or parents from filing a petition to terminate the limited guardianship at any time as provided in § 5208. Appointment of a limited guardian under this section is a continuing appointment.

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)

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

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

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

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US Supreme Court

CPS Statutes

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

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

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

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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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)

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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