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

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

Minnesota

 

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

‘Physical abuse’ means any physical injury, mental injury, or threatened injury inflicted by a person responsible for the child’s care on a child by other than accidental means; physical or mental injury that cannot reasonably be explained by the child’s history of injuries; or any aversive and deprivation procedures or regulated interventions that have not been authorized by law. Physical abuse includes, but is not limited to, any of the following acts:

  • Throwing, kicking, burning, biting, or cutting a child
  • Striking a child with a closed fist
  • Shaking a child under age 3
  • Striking or other actions that result in any nonaccidental injury to a child under 18 months
  • Unreasonable interference with a child’s breathing
  • Threatening a child with a weapon
  • Striking a child under age 1 on the face or head
  • Striking a child who is at least age 1 but under age 4 on the face or head, which results in an injury
  • Purposely giving a child poison, alcohol, or dangerous, harmful, or controlled substances that were not prescribed for the child by a practitioner, in order to control or punish the child; giving the child substances that substantially affect the child’s behavior, motor coordination, or judgment or that result in sickness or internal injury; or subjecting the child to medical procedures that would be unnecessary if the child were not exposed to the substances
  • Unreasonable physical confinement or restraint not permitted by law including, but not limited to, tying, caging, or chaining
  • In a school facility or school zone, an act by a person responsible for the child’s care that is a violation under § 121A.58 [prohibiting corporal punishment]
Neglect

‘Neglect’ means the commission or omission of any of the acts specified below by other than accidental means:

  • Failure by a person responsible for a child’s care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child’s physical or mental health when reasonably able to do so
  • Failure to protect a child from conditions or actions that seriously endanger the child’s physical or mental health when reasonably able to do so, including a growth delay (also known as failure to thrive) that has been diagnosed by a physician and is due to parental neglect
  • Failure to provide necessary supervision or child care arrangements appropriate for a child after considering such factors as the child’s age, mental ability, physical condition, length of absence, or environment, when the child is unable to care for his or her own basic needs or safety or the basic needs or safety of another child in his or her care
  • Failure to ensure that the child is educated as required by State law, which does not include a parent’s refusal to provide his or her child with sympathomimetic medications
  • Prenatal exposure to a controlled substance used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms in the child at birth, results of a toxicology test performed on the mother at delivery or the child at birth, or medical effects or developmental delays during the child’s first year of life that medically indicate prenatal exposure to a controlled substance, or the presence of a fetal alcohol spectrum disorder
  • ‘Medical neglect’ that includes, but is not limited to, withholding medically indicated treatment from a disabled infant with a life-threatening condition
  • Chronic and severe use of alcohol or a controlled substance by a parent or person responsible for the care of the child that adversely affects the child’s basic needs and safety
Sexual Abuse/Exploitation

‘Sexual abuse’ means the subjection of a child to any act that constitutes criminal sexual conduct by a person responsible for the child’s care, a person who has a significant relationship to the child, or a person in a position of authority. Sexual abuse includes any act that involves a minor that constitutes a violation of prostitution offenses. Sexual abuse also includes threatened sexual abuse, including the status of a parent or household member who has committed a violation that requires registration as a predatory offender.

‘Sexually exploited youth’ means an individual who:

  • Is alleged to have engaged in conduct that would, if committed by an adult, violate any Federal, State, or local law relating to being hired, offering to be hired, or agreeing to be hired by another individual to engage in sexual penetration or sexual conduct
  • Is a victim of the crime of criminal sexual conduct, criminal sexual predatory conduct, use of minors in sexual performances, or possession of child pornography
  • Is a victim of the Federal offenses of child pornography or child sex trafficking
  • Is a sex trafficking victim
Emotional Abuse

‘Emotional maltreatment’ means the consistent, deliberate infliction of mental harm on a child by a person responsible for the child’s care that has an observable, sustained, and adverse effect on the child’s physical, mental, or emotional development.

‘Mental injury’ means an injury to the psychological capacity or emotional stability of a child as evidenced by an observable or substantial impairment in the child’s ability to function within a normal range of performance and behavior with due regard to the child’s culture.

‘Neglect’ includes emotional harm from a pattern of behavior that contributes to impaired emotional functioning of the child that may be demonstrated by a substantial and observable effect in the child’s behavior, emotional response, or cognition that is not within the normal range for the child’s age and stage of development, with due regard to the child’s culture.

Abandonment

Citation: Ann. Stat. § 260C.007, Subd. 6
The term ‘child in need of protection or services’ means a child who is in need of protection or services because he or she is abandoned or without a parent, guardian, or custodian.

Standards for Reporting

Citation: Ann. Stat. § 626.556, Subd. 3
A report is required when a mandatory reporter knows or has reason to believe a child is being neglected or physically or sexually abused or has been neglected or physically or sexually abused within the preceding 3 years.

Persons Responsible for the Child

‘Person responsible for the child’s care’ means:

  • An individual functioning within the family unit and having responsibilities for the care of the child such as a parent, guardian, or other person having similar care responsibilities
  • An individual functioning outside the family unit and having responsibilities for the care of the child such as a teacher, school administrator, other school employees or agents, or other lawful custodian of a child having either full-time or short-term care responsibilities including, but not limited to, daycare, babysitting (paid or unpaid), counseling, teaching, and coaching

‘Family or household members’ means spouses, former spouses, parents and children, persons related by blood, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time.

Exceptions

A child is not considered neglected solely because the child’s parent, guardian, or other person responsible for the child’s care in good faith selects and depends upon spiritual means or prayer for treatment or care of disease or remedial care of the child in lieu of medical care. A parent, guardian, caregiver, or a person mandated to report [child abuse or neglect] has a duty to report if a lack of medical care may cause serious danger to the child’s health.

Persons who are not otherwise legally responsible for providing a child with necessary food, clothing, shelter, education, or medical care do not have a duty to provide that care.

Abuse does not include reasonable and moderate physical discipline of a child administered by a parent or legal guardian that does not result in an injury.

Abuse does not include the use of reasonable force by a teacher, principal, or school employee as allowed by § 121A.582.

Emotional maltreatment does not include reasonable training or discipline administered by the person responsible for the child’s care or the reasonable exercise of authority by that person.

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Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means the following if committed against a family or household member by a family or household member:

  • Physical harm, bodily injury, or assault
  • The infliction of fear of imminent physical harm, bodily injury, or assault
  • Terroristic threats, as defined by § 609.713, subdivision 1
  • Criminal sexual conduct, as defined by §§ 609.342, 609.343, 609.344, 609.345, or 609.3451
  • Interference with an emergency call, as defined by § 609.78, subdivision 2
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic assault’ occurs when a person commits an assault, defined as any of the acts listed below, against a family or household member, as defined in § 518B.01, subdivision 2. A domestic assault occurs when the person:

  • Commits an act with intent to cause fear in another of immediate bodily harm or death
  • Intentionally inflicts or attempts to inflict bodily harm upon another
Persons Included in the Definition

‘Family or household members’ means:

  • Spouses and former spouses
  • Parents and children
  • Persons related by blood
  • Persons who are presently residing together or who have resided together in the past
  • Persons who have a child in common regardless of whether they have been married or have lived together at any time
  • A man and woman if the woman is pregnant and the man is alleged to be the father regardless of whether they have been married or have lived together at any time
  • Persons involved in a significant romantic or sexual relationship

In determining whether persons are or have been involved in a significant romantic or sexual relationship, the court shall consider the length of time of the relationship; type of relationship; frequency of interaction between the parties; and, if the relationship has terminated, length of time since the termination.

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Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

The following persons are immune from any civil or criminal liability that otherwise might result from their actions, if they are acting in good faith:

  • Any person making a voluntary or mandated report under the reporting laws or assisting in an assessment
  • Any person with responsibility for performing duties under this section; a supervisor employed by a local welfare agency; or the commissioner of an agency responsible for operating or supervising a licensed or unlicensed day care facility, residential facility, agency, hospital, sanitarium, or other facility or institution required to be licensed, a school, or a nonlicensed personal care provider organization
  • A representative or employee of any public or private school or facility who permits access by a local welfare agency, the Department of Education, or local law enforcement agency and assists in an investigation or assessment

A person who is a supervisor or person with responsibility for performing duties under this section who is employed by a local welfare agency, the commissioner of human services, or the commissioner of education complying with the reporting laws or any related rule or provision of law is immune from any civil or criminal liability that might otherwise result from the person’s actions if the person is (1) acting in good faith and exercising due care or (2) acting in good faith and following the information collection procedures established by law.

This subdivision does not provide immunity to any person for failure to make a required report or for committing neglect, physical abuse, or sexual abuse of a child.

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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 person who knows or has reason to believe a child is being neglected or physically or sexually abused, or a child has been neglected or physically or sexually abused within the preceding 3 years, immediately shall make a report.

An oral report shall be made immediately by telephone or otherwise. An oral report made by a mandated reporter shall be followed within 72 hours, exclusive of weekends and holidays, by a report in writing to the appropriate police department, the county sheriff, the agency responsible for assessing or investigating the report, or the local welfare agency, unless the appropriate agency has informed the reporter that the oral information does not constitute a report.

Content of Reports

Any report shall be of sufficient content to identify:

  • The child
  • Any person believed to be responsible for the abuse or neglect, if known
  • The nature and extent of the abuse or neglect
  • The name and address of the reporter
Reporting Suspicious Deaths

When a mandated reporter knows or has reason to believe that a child has died as a result of neglect, physical abuse, or sexual abuse, the reporter shall immediately report that information to the appropriate medical examiner or coroner instead of the local welfare agency, police department, or county sheriff.

Medical examiners or coroners shall notify the local welfare agency, police department, or county sheriff in instances in which they believe that the child has died as a result of neglect, physical abuse, or sexual abuse. The medical examiner or coroner shall complete an investigation as soon as feasible and report the findings to the police department or county sheriff and the local welfare agency.

Reporting Substance-Exposed Infants

A mandated reporter shall immediately report to the local welfare agency when there is reason to believe that a pregnant woman has used a controlled substance for a nonmedical purpose, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive. An oral report shall be made immediately by telephone or otherwise. An oral report made by a mandated reporter shall be followed within 72 hours by a written report. Any report shall be of sufficient content to identify the pregnant woman, the nature and extent of the use, if known, and the name and address of the reporter.

A physician shall administer a toxicology test to a mother within 8 hours after delivery to determine whether there is evidence that she has ingested a controlled substance, if the woman has obstetrical complications that are an indication of possible use of a controlled substance for a nonmedical purpose. A physician shall administer to each newborn infant born under the physician’s care a toxicology test to determine whether there is evidence of prenatal exposure to a controlled substance, if the physician has reason to believe based on a medical assessment of the mother or the infant that the mother used a controlled substance for a nonmedical purpose during the pregnancy. If the results of either test are positive, the physician shall report the results as neglect under § 626.556.

Agency Receiving the Reports

A report shall be made to the local welfare agency, the agency responsible for assessing or investigating the report, the police department, or the county sheriff.

Initial Screening Decisions

The local welfare agency shall determine if the report is accepted for an assessment or investigation as soon as possible but in no event longer than 24 hours after the report is received.

Upon receipt of a report, the local welfare agency shall determine whether to conduct a family assessment or an investigation, as appropriate, to prevent or provide a remedy for child maltreatment. The local welfare agency:

  • Shall conduct an investigation on reports involving substantial child endangerment
  • Shall begin an immediate investigation if, at any time when it is using a family assessment response, it determines that there is reason to believe that substantial child endangerment or a serious threat to the child’s safety exists
  • May conduct a family assessment for reports that do not allege substantial child endangerment
  • May conduct a family assessment on a report that was initially screened and assigned for an investigation

In determining that a family assessment is appropriate, the local welfare agency may consider issues of child safety, parental cooperation, and the need for an immediate response.

Agency Conducting the Assessment/Investigation

The Department of Education is the agency responsible for assessing or investigating allegations of child maltreatment in schools.

The county local welfare agency is the agency responsible for assessing or investigating allegations of maltreatment in child foster care, family child care, legally unlicensed child care, juvenile correctional facilities located in the local welfare agency’s county, and reports involving children served by an unlicensed personal care provider organization.

The Department of Human Services is the agency responsible for assessing or investigating allegations of maltreatment in facilities licensed under chapters 245A and 245B, except for child foster care and family child care. The Department of Health is the agency responsible for assessing or investigating allegations of child maltreatment in facilities licensed under §§ 144.50 to 144.58 and 144A.46.

The local welfare agency is the agency responsible for investigating allegations of sexual abuse if the alleged offender is the parent, guardian, sibling, an individual functioning within the family unit as a person responsible for the child’s care, or a person with a significant relationship to the child if that person resides in the child’s household.

The local law enforcement agency has responsibility for investigating any report of child maltreatment if a violation of a criminal statute is alleged.

Assessment/Investigation Procedures

In conducting a family assessment or investigation, the local welfare agency shall gather information on the existence of substance abuse and domestic violence and offer services for purposes of preventing future child maltreatment, safeguarding and enhancing the welfare of the abused or neglected minor, and supporting and preserving family life whenever possible. If the family assessment or investigation indicates there is a potential for abuse of alcohol or other drugs by the parent, guardian, or person responsible for the child’s care, the local welfare agency shall conduct a chemical use assessment.

The local welfare agency conducting the family assessment or investigation shall collect available and relevant information to determine child safety, risk of subsequent child maltreatment, and family strengths and needs and shall share nonpublic information with an Indian’s Tribal social services agency without violating any law of the State that may otherwise impose duties of confidentiality on the local welfare agency in order to implement the Tribal-State agreement.

The agency responsible for investigating the report shall collect available and relevant information to ascertain whether maltreatment occurred and whether protective services are needed. Information collected includes, when relevant, information with regard to:

  • The person reporting the alleged maltreatment, including the nature of the reporter’s relationship to the child and to the alleged offender, and the basis of the reporter’s knowledge for the report
  • The child allegedly being maltreated
  • The alleged offender
  • The child’s caregiver
  • Other collateral sources having relevant information related to the alleged maltreatment

The agency investigating the report may make a determination of no maltreatment early in an investigation, and close the case and retain immunity, if the collected information shows no basis for a full investigation.

Timeframes for Completing Investigations

The local welfare agency shall conclude the family assessment or the investigation within 45 days of the receipt of a report.

Classification of Reports

After conducting a family assessment, the local welfare agency shall determine whether services are needed to address the safety of the child and other family members and the risk of subsequent maltreatment.

After conducting an investigation, the local welfare agency shall make two determinations:

  • Whether maltreatment has occurred
  • Whether child protective services are needed

No determination of maltreatment shall be made when the alleged perpetrator is a child younger than age 10.

If the Commissioner of Education conducts an assessment or investigation, the commissioner shall determine whether maltreatment occurred and what corrective or protective action was taken by the school facility.

When maltreatment is determined in an investigation involving a facility, the investigating agency also shall determine whether the facility or individual was responsible or whether both the facility and the individual were responsible for the maltreatment.

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Parental Drug Use as Child Abuse

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Current Through April 2015

A physician shall administer a toxicology test to a pregnant woman under the physician’s care or to a woman under the physician’s care within 8 hours after delivery to determine whether there is evidence that she has ingested a controlled substance, if the woman has obstetrical complications that are a medical indication of possible use of a controlled substance for a nonmedical purpose. If the test results are positive, the physician shall report the results. A negative test result does not eliminate the obligation to report if other evidence gives the physician reason to believe the patient has used a controlled substance for a nonmedical purpose.

A physician shall administer to each newborn infant born under the physician’s care a toxicology test to determine whether there is evidence of prenatal exposure to a controlled substance if the physician has reason to believe, based on a medical assessment of the mother or the infant, that the mother used a controlled substance for a nonmedical purpose during the pregnancy. If the test results are positive, the physician shall report the results as neglect. A negative test result does not eliminate the obligation to report if other medical evidence of prenatal exposure to a controlled substance is present.

Physicians shall report to the Department of Health the results of tests performed. A report shall be made on the Certificate of Live Birth Medical Supplement or the Report of Fetal Death Medical Supplement filed on or after February 1, 1991.

Except as provided below, a mandated reporter shall immediately report to the local welfare agency if the reporter knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive.

A health-care professional or a social service professional who is mandated to report is exempt from reporting a woman’s use or consumption of tetrahydrocannabinol or alcoholic beverages during pregnancy if the professional is providing the woman with prenatal care or other health-care services.

Any person may make a voluntary report if the person knows or has reason to believe that a woman is pregnant and has used a controlled substance for a nonmedical purpose during the pregnancy, including, but not limited to, tetrahydrocannabinol, or has consumed alcoholic beverages during the pregnancy in any way that is habitual or excessive.

An oral report shall be made immediately by telephone or otherwise. An oral report made by a mandated reporter shall be followed within 72 hours, exclusive of weekends and holidays, by a report in writing to the local welfare agency. Any report shall be of sufficient content to identify the pregnant woman, the nature and extent of the use, if known, and the name and address of the reporter.

For purposes of this section, ‘prenatal care’ means the comprehensive package of medical and psychological support provided throughout the pregnancy.

A parent, legal guardian, or caregiver who endangers the child’s person or health by knowingly causing or permitting the child to be present where any person is selling, manufacturing, possessing immediate precursors or chemical substances with the intent to manufacture, or possessing a controlled substance, as defined in statute, is guilty of child endangerment and may be sentenced to imprisonment for not more than 1 year or to payment of a fine of not more than $3,000, or both.

If the endangerment results in substantial harm to the child’s physical, mental, or emotional health, the person may be sentenced to imprisonment for not more than 5 years or to payment of a fine of not more than $10,000, or both.

Upon receipt of a report, the local welfare agency shall immediately conduct an appropriate assessment and offer services indicated under the circumstances. Services offered may include, but are not limited to, a referral for chemical dependency assessment, a referral for chemical dependency treatment if recommended, and a referral for prenatal care. The local welfare agency also may take any appropriate action under chapter 253B, including seeking an emergency admission under § 253B.05. The local welfare agency shall seek an emergency admission under § 253B.05 if the pregnant woman refuses recommended voluntary services or fails recommended treatment.

The term ‘neglect’ includes:

  • Prenatal exposure to a controlled substance, as defined in § 253B.02, subd. 2, used by the mother for a nonmedical purpose, as evidenced by withdrawal symptoms in the child at birth, results of a toxicology test performed on the mother at delivery or on the child at birth, medical effects or developmental delays during the child’s first year of life that medically indicate prenatal exposure to a controlled substance, or the presence of a fetal alcohol spectrum disorder
  • Chronic and severe use of alcohol or a controlled substance by a parent or person responsible for the care of the child that adversely affects the child’s basic needs and safety

The term ‘physical abuse’ includes purposely giving a child poison, alcohol, or dangerous, harmful, or controlled substances that were not prescribed for the child by a practitioner, in order to control or punish the child; or other substances that substantially affect the child’s behavior, motor coordination, judgment, or that results in sickness or internal injury; or subjects the child to medical procedures that would be unnecessary if the child were not exposed to the substances.

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Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The child, parent, guardian, or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court as provided in this subdivision.

If the child, parent, guardian, or custodian desires counsel but is unable to employ it, the court shall appoint counsel to represent the child who is age 10 or older, or the parent, guardian, or custodian in any case in which it feels that such an appointment is appropriate if the person would be financially unable to obtain counsel.

Counsel for the child shall not also act as the child’s guardian ad litem (GAL).

The court shall appoint a GAL to protect the interests of the minor when it appears, at any stage of the proceedings, that the minor is without a parent or guardian, the minor’s parent is a minor or incompetent, or the parent or guardian is indifferent or hostile to the minor’s interests, and in every proceeding alleging a child’s need for protection or services under § 260C.007, subd. 6. In any other case the court may appoint a GAL to protect the interests of the minor when the court feels that such an appointment is desirable. The court shall appoint the GAL on its own motion or in the manner provided for the appointment of a GAL in the district court. The court may appoint separate counsel for the GAL if necessary.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Counsel retained by the county must meet the qualifications established by the Judicial Council in at least one of the following: (1) has a minimum of 2 years’ experience handling child protection cases; (2) has training in handling child protection cases from a course or courses approved by the Judicial Council; or (3) is supervised by an attorney who meets the minimum qualifications under clause (1) or (2).

When appointing a GAL in a case involving an Indian or minority child, the court must consider whether a person is available who is the same racial or ethnic heritage as the child or, if that is not possible, whether a person is available who knows and appreciates the child’s racial or ethnic heritage.

The court shall initiate a background study through the Commissioner of Human Services under § 245C.32 on every GAL appointed under this section if a background study has not been completed on the GAL within the past 3 years. The background study must be completed before the court appoints the GAL, unless the court determines that it is in the best interests of the child to appoint a GAL before a background study can be completed. A subsequent background study must be completed once every 3 years after the GAL has been appointed as long as the individual continues to serve as a GAL.

The background study must include criminal history data from the Bureau of Criminal Apprehension, other criminal history data held by the Commissioner of Human Services, and data regarding whether the person has been a perpetrator of substantiated maltreatment of a minor or a vulnerable adult. When information from the Bureau of Criminal Apprehension indicates that the subject of a study is a multistate offender or that the subject’s multistate offender status is undetermined, the court shall require a search of the National Criminal Records Repository and shall provide the commissioner a set of classifiable fingerprints of the subject of the study.

Specific Duties

A GAL shall carry out the following responsibilities:

  • Conduct an independent investigation to determine the facts relevant to the situation of the child and the family, including, unless specifically excluded by the court, reviewing relevant documents; meeting with and observing the child in the home setting and considering the child’s wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case
  • Advocate for the child’s best interests by participating in appropriate aspects of the case and advocating for appropriate community services when necessary
  • Maintain the confidentiality of information related to a case, with the exception of sharing information as permitted by law to promote cooperative solutions that are in the best interests of the child
  • Monitor the child’s best interests throughout the judicial proceeding
  • Present written reports on the child’s best interests that include conclusions and recommendations and the facts upon which they are based
How the Representative Is Compensated

Reasonable compensation for an attorney appointed by the court to serve as counsel shall be paid by the county in which proceedings are held.

The State Guardian Ad Litem Board shall pay for GAL expenses and reasonable compensation for an attorney to serve as counsel for a GAL, if necessary. In no event may the court order that GAL expenses or compensation for an attorney serving as counsel for a GAL be charged to a county.

In proceedings in which the court has appointed counsel pursuant to § 260C.163, subd. 3 and § 611.14(4), for a minor unable to employ counsel, the court may inquire into the ability of the parents to pay for the counsel’s services and, after giving the parents a reasonable opportunity to be heard, may order the parents to pay attorney fees.

In proceedings in which the court appoints a GAL pursuant to § 260C.163, subd. 5, the court may inquire into the ability of the parents to pay for the GAL’s services and, after giving the parents a reasonable opportunity to be heard, may order the parents to pay GAL fees.

In each fiscal year, the Commissioner of Management and Budget shall deposit GAL reimbursements in the special revenue fund and credit them to a separate account with the State Guardian Ad Litem Board. The balance of this account is appropriated to the State Guardian Ad Litem Board and does not cancel but is available until expended. Revenue from this account must be spent in the judicial district in which the reimbursement is collected.

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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

An out-of-home placement plan shall be prepared within 30 days after any child is placed in foster care by court order or a voluntary placement agreement between the responsible social services agency and the child’s parent.

Who May Participate in the Case Planning Process

An out-of-home placement plan means a written document that is prepared by the responsible social services agency jointly with the parent(s) or guardian of the child and in consultation with the child’s guardian ad litem, the child’s Tribe if the child is an Indian child, the child’s foster parent, or representative of the foster care facility, and, where appropriate, the child. For a child in voluntary foster care for treatment under chapter 260D, preparation of the out-of-home placement plan shall additionally include the child’s mental health treatment provider.

Contents of a Case Plan

The plan shall set forth:

  • A description of the foster care home or facility including how the out-of-home placement plan is designed to achieve a safe placement for the child in the least restrictive, most familylike setting available, and is in close proximity to the home of the parent when the case plan goal is reunification
  • How the placement is consistent with the best interests and special needs of the child
  • The specific reasons for the placement of the child in foster care
  • When reunification is the plan, a description of the problems or conditions in the home that necessitated removal of the child from home and the changes the parent must make in order for the child to safely return home
  • A description of the services offered and provided to prevent removal of the child from the home and to reunify the family, including:
    • The specific actions to be taken by the parent or parents of the child to eliminate or correct identified problems or conditions and the time period during which the actions are to be taken
    • The reasonable efforts, or in the case of an Indian child, active efforts to be made to achieve a safe and stable home for the child, including social and other supportive services to be provided or offered to the parent or guardian of the child, the child, and the residential facility during the period the child is in the residential facility
  • A description of any services or resources that were requested by the child or the child’s parent, guardian, foster parent, or custodian since the date of the child’s placement, and whether those services or resources were provided
  • The visitation plan for the parent(s), guardian, other relatives, and siblings of the child if the siblings are not placed together in foster care, and whether visitation is consistent with the best interests of the child
  • Documentation of steps to finalize the adoption or legal guardianship of the child if the court has issued an order terminating parental rights
  • Efforts to ensure the child’s educational stability while in foster care, including:
    • Efforts to ensure that the child in placement remains in the same school in which the child was enrolled prior to placement, including efforts to work with the local education authorities to ensure the child’s educational stability
    • If it is not in the child’s best interests to remain in the same school, efforts to ensure immediate and appropriate enrollment for the child in a new school
  • The educational records of the child
  • The efforts by the local agency to ensure the oversight and continuity of health-care services for the foster child
  • The health records of the child, including information available regarding:
    • The names and addresses of the child’s health-care and dental-care providers
    • A record of the child’s immunizations
    • The child’s known medical problems, including any known communicable diseases
    • The child’s medications
    • Any other relevant health-care information such as the child’s eligibility for medical insurance or medical assistance
  • An independent living plan for a child age 16 or older, including, but not limited to, the following objectives:
    • Educational, vocational, or employment planning
    • Health-care planning and medical coverage
    • Transportation including, where appropriate, assisting the child in obtaining a driver’s license
    • Money management
    • Planning for housing
    • Social and recreational skills
    • Establishing and maintaining connections with the child’s family and community
  • For a child in voluntary foster care for treatment, diagnostic and assessment information, specific services relating to meeting the mental health-care needs of the child, and treatment outcomes

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Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

If a child is placed in foster care, the court shall review the placement:

  • At least every 90 days after placement to determine whether continued out-of-home placement is necessary and appropriate or whether the child should be returned home
  • No later than 3 months after the child’s placement in foster care

When a child who is age 18 or older remains in or returns to foster care pursuant to § 260C.451, the court shall review the case at least annually.

A permanency progress hearing shall be held no later than 6 months after the child’s placement in out-of-home care. Following the review hearing:

  • The court may order the child’s reunification or continue the matter up to 6 additional months.
  • The court may order the responsible social services agency to develop a plan for the transfer of permanent legal and physical custody of the child to a relative and to file a petition within 30 days and a trial on the petition held within 60 days of the filing of the petition.
  • The court may order the agency to file a termination of parental rights within 30 days of the hearing a trial on the petition held within 60 days of the filing of the petition.
Persons Entitled to Attend Hearings

A child who is the subject of a petition, and the parents, guardian, or legal custodian of the child have the right to participate in all proceedings on a petition, including the opportunity to attend all hearings in person. Official Tribal representatives have the right to participate in any proceeding that is subject to the Indian Child Welfare Act.

A parent with a legally recognized parent-child relationship must be provided the right to be heard in any review or hearing held with respect to the child, including the right to be heard on the disposition order, parental visitation, and the out-of-home placement plan. The right to be heard does not automatically confer party status.

Any grandparent of the child has a right to participate in the proceedings to the same extent as a parent, if the child has lived with the grandparent within the 2 years preceding the filing of the petition.

If, in a permanency proceeding involving a child in need of protection or services, any party files a petition for transfer of permanent legal and physical custody to a named relative, the relative has a right to participate in the permanency proceeding as a party on the issues of the relative’s suitability to be a legal and physical custodian for the child, whether the transfer is in the child’s best interests, and the needs of the child. Thereafter the named relative shall receive notice of any hearing in the proceedings.

The child and the child’s parent, guardian, or custodian are entitled to be heard, to present evidence material to the case, and to cross-examine witnesses appearing at the hearing.

Determinations Made at Hearings

At the foster care hearing, the court shall review:

  • The safety, permanency needs, and well-being of the child
  • The continuing necessity for and appropriateness of the placement
  • The extent of compliance with the out-of-home placement plan
  • The extent of progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care
  • The projected date by which the child may be returned to and safely maintained in the home or placed permanently away from the care of the parent
  • The appropriateness of the services provided to the child

In addition, for a child who is age 14 or older, the court shall review the Independent Living plan and the provision of services to the child related to the well-being of the child as he or she prepares to leave foster care.

At the permanency progress hearing, the court shall review:

  • The progress of the case and the parent’s progress on the case plan
  • The agency’s reasonable, or in the case of an Indian child, active efforts for reunification and its provision of services
  • The agency’s reasonable efforts to finalize the permanent plan for the child and to make a placement in a home that will commit to being the legally permanent family for the child in the event the child cannot return home according to the timelines in this section
  • In the case of an Indian child, active efforts to prevent the breakup of the Indian family and to make a placement according to the placement preferences of the Federal Indian Child Welfare Act
Permanency Options

When a child cannot return home, termination of parental rights and adoption or guardianship to the commissioner of human services through a consent to adopt are preferred permanency options. If the court finds that termination of parental rights and guardianship to the commissioner is not in the child’s best interests, the court may transfer permanent legal and physical custody of the child to a relative when that order is in the child’s best interests.

When the court has determined that permanent placement of the child away from the parent is necessary, the court shall consider permanent alternative homes that are available both inside and outside the State.

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Determining the Best Interests of the Child

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Current Through March 2016

Placement of a child cannot be delayed or denied based on race, color, or national origin of the foster parent or the child.

Whenever possible, siblings should be placed together unless it is determined not to be in the best interests of siblings. If siblings were not placed together, the responsible social services agency shall report to the court the efforts made to place the siblings together and why the efforts were not successful. If the court is not satisfied that the agency has made reasonable efforts to place siblings together, the court must order the agency to make further reasonable efforts. If siblings are not placed together, the court shall order the responsible social services agency to implement the plan for visitation among siblings required as part of the out-of-home placement plan.

This subdivision does not affect the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.) and the Minnesota Indian Family Preservation Act, §§ 260.751 to 260.835.

The policy of the State is to ensure that the best interests of children who are in foster care, who experience transfer of permanent legal and physical custody to a relative, or who are adopted are met by requiring individualized determinations under § 260C.212, subd.2(b), of the needs of the child and of how the selected home will serve the needs of the child.

No later than 3 months after a child is ordered removed from the care of a parent, the court shall review and enter findings regarding whether the responsible social services agency made:

  • Diligent efforts to identify and search for relatives as required under § 260C.221
  • An individualized determination as required under § 260C.212 to select a home that meets the needs of the child

If the court finds the agency has not made the required efforts, and there is a relative who qualifies to be licensed to provide family foster care, the court may order the child placed with the relative consistent with the child’s best interests.

If the agency’s efforts are found to be sufficient, the court shall order the agency to continue to appropriately engage relatives who responded to the notice under § 260C.221 in placement and case planning decisions and to appropriately engage relatives who subsequently come to the agency’s attention.

If the child’s birth parent or parents explicitly request that a relative or important friend not be considered, the court shall honor that request if it is consistent with the best interests of the child. If the child’s birth parent or parents express a preference for placing the child in a foster or adoptive home of the same or a similar religious background to that of the birth parent or parents, the court shall order placement of the child with an individual who meets the birth parent’s religious preference.

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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 juvenile court may, upon petition, terminate all rights of a parent to a child if it finds that one or more of the following conditions exist:

  • The parent has abandoned the child.
  • The parent has substantially, continuously, or repeatedly refused or neglected to provide the child with necessary food, clothing, shelter, education, and other care and control.
  • The parent has been ordered to contribute to the support of the child or financially aid in the child’s birth and has continuously failed to do so without good cause.
  • The parent is found to be unfit because he or she is unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child. A parent is presumed to be unfit if his or her parental rights to another child have been terminated involuntarily.
  • Following the child’s placement out of the home, reasonable efforts have failed to correct the conditions leading to the child’s placement.
  • The parent has failed two or more times to successfully complete a treatment program for chemical dependency.
  • The parent has subjected a child to egregious harm that is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being.
  • An unwed birth father has failed to register with the fathers’ adoption registry.
  • The child is neglected and in foster care.
  • The parent has been convicted of a crime listed below:
    • Murder, manslaughter, assault with a deadly weapon that results in serious bodily injury, or sexual abuse that was committed against the child or another child of the parent
    • An offense that requires registration as a predatory offender
  • The child is an abandoned infant.
  • The provision of services or further services for the purpose of reunification is futile and therefore unreasonable under the circumstances.

It is presumed that reasonable efforts have failed upon a showing that:

  • The parent has been diagnosed as chemically dependent by a professional certified to make the diagnosis.
  • The parent has been required by a case plan to participate in a chemical dependency treatment program.
  • The treatment programs offered to the parent were culturally, linguistically, and clinically appropriate.
  • The parent has either failed two or more times to successfully complete a treatment program or has refused at two or more separate meetings with a caseworker to participate in a treatment program.
  • The parent continues to abuse chemicals.
Circumstances That Are Exceptions to Termination of Parental Rights

The county attorney shall file a termination of parental rights petition within 30 days of a determination that a child has been subjected to egregious harm unless:

  • The county attorney files a petition for transfer of permanent legal and physical custody of the child to a relative, including a determination that the transfer is in the best interests of the child.
  • The responsible social services agency has documented in the case plan a compelling reason why filing a termination of parental rights petition would not be in the best interests of the child.

A termination of parental rights petition shall be filed when a child has been in out-of-home care for 15 of the most recent 22 months unless:

  • There is a compelling reason approved by the court for determining that filing a termination of parental rights petition would not be in the best interests of the child.
  • The responsible social services agency has not provided reasonable efforts necessary for the safe return of the child, if reasonable efforts are required.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

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Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A newborn may be relinquished provided that:

  • The newborn was born within 7 days of being left at the hospital, as determined within a reasonable degree of medical certainty.
  • The newborn is left in an unharmed condition.
Who May Relinquish the Infant

A mother or any person with the mother’s permission may bring a newborn infant to a safe place during its hours of operation and leave the infant in the care of an employee of the safe place. The mother or a person with the mother’s permission may call 911 to request to have an ambulance dispatched to an agreed-upon location to relinquish a newborn infant into the custody of ambulance personnel.

Who May Receive the Infant

The infant may be left at a safe place. The term ‘safe place’ includes a licensed hospital, a health-care provider who provides urgent care medical services, or a licensed ambulance service dispatched in response to a 911 call from a mother or a person with the mother’s permission to relinquish a newborn infant.

A safe place shall receive a newborn left with an employee on the premises of the safe place during its hours of operation provided that:

  • The newborn was born within 7 days of being left at the safe place, as determined within a reasonable degree of medical certainty.
  • The newborn is left in an unharmed condition.
Responsibilities of the Safe Haven Provider

A safe place that is a health-care provider who provides urgent care medical services shall dial 911, advise the dispatcher that the call is being made from a safe place for newborns, and ask the dispatcher to send an ambulance or take other appropriate action to transport the newborn to a hospital. An ambulance with whom a newborn is left shall transport the newborn to a hospital for care.

Within 24 hours of receiving a newborn under this section, the hospital must inform the responsible social service agency that a newborn has been left at the hospital but must not do so in the presence of the mother or the person leaving the newborn. The hospital must provide necessary care to the newborn pending assumption of legal responsibility by the responsible social services agency.

Immunity for the Provider

A safe place with responsibility for performing duties under this section, and any employee, doctor, ambulance personnel, or other medical professional working at the safe place, are immune from any criminal liability that otherwise might result from their actions if they are acting in good faith in receiving a newborn, and are immune from any civil liability that otherwise might result from merely receiving a newborn.

A safe place performing duties under this section or an employee, doctor, ambulance personnel, or other medical professional working at the safe place who is a mandated reporter under § 626.556, is immune from any criminal or civil liability that otherwise might result from the failure to make a report under that section if the person is acting in good faith in complying with this section.

Protection for Relinquishing Parent

The safe place must not inquire as to the identity of the mother or the person leaving the newborn or call the police provided the newborn is unharmed when presented to the hospital. The safe place may ask the mother or the person leaving the newborn about the medical history of the mother or newborn but the mother or the person leaving the newborn is not required to provide any information. The safe place may provide the mother or the person leaving the newborn with information about how to contact relevant social service agencies.

A person may leave a newborn with an employee at a safe place without being subjected to prosecution for that act, provided that:

  • The newborn was born within 7 days of being left at the safe place, as determined within a reasonable degree of medical certainty.
  • The newborn is left in an unharmed condition.
  • In cases where the person leaving the newborn is not the newborn’s mother, the person has the mother’s approval to do so.
Effect on Parental Rights

A responsible social service agency with responsibility for the child is not required to attempt to reunify the child with the child’s parents. Additionally, the agency is not required to search for relatives of the child as a placement or permanency option or to implement other placement requirements that give a preference to relatives if the agency does not have information as to the identity of the child, the child’s mother, or the child’s father.

For purposes of proceedings under this chapter and adoption proceedings, a newborn left at a safe place is considered an abandoned child.

The agency contacted by a safe place shall have the legal responsibility to place the newborn infant in foster care for 72 hours, during which time the agency shall file a petition under § 260C.141 and ask the court to order continued placement of the child in foster care. The agency shall immediately begin planning for adoptive placement of the newborn.

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Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘custodian’ means any person who is under a legal obligation to provide care and support for a child or who is in fact providing care and support for a child. For an Indian child, custodian means any Indian person who has legal custody of an Indian child under Tribal law or custom, under State law, or to whom temporary physical care, custody, and control has been transferred by the parent of the child, as provided in § 260.755, subd. 10.

The term ‘family or household members’ means spouses, former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time.

The term ‘legal custody’ means the right to the care, custody, and control of a child who has been taken from a parent by the court in accordance with the provisions of § 260C.201 or 260C.317.

The term ‘parent’ means a person who has a legal parent and child relationship with a child that confers or imposes on the person legal rights, privileges, duties, and obligations, including the mother and child relationship and the father and child relationship. For matters governed by the Indian Child Welfare Act, parent includes any Indian person who has adopted a child by Tribal law or custom, but does not include the unwed father when paternity has not been acknowledged or established.

The term ‘relative’ means a person related to the child by blood, marriage, or adoption, or an individual who is an important friend with whom the child has resided or had significant contact. For an Indian child, relative includes members of the extended family as defined by the law or custom of the Indian child’s Tribe or, in the absence of law or custom, nieces, nephews, or first or second cousins, as provided in the Indian Child Welfare Act of 1978.

Purpose of Guardianship

Termination of parental rights and adoption, or guardianship to the Commissioner of Human Services through a consent to adopt, are preferred permanency options for a child who cannot return home. If the court finds that termination of parental rights and guardianship to the commissioner are not in the child’s best interests, the court may transfer permanent legal and physical custody of the child to a relative when that order is in the child’s best interests.

To be eligible for guardianship assistance, the legally responsible agency must complete the following determinations regarding permanency for the child prior to the transfer of permanent legal and physical custody:

  • A determination that reunification and adoption are not appropriate permanency options for the child
  • A determination that the child demonstrates a strong attachment to the prospective relative custodian, and the prospective relative custodian has a strong commitment to caring permanently for the child
A Guardian’s Rights and Responsibilities

A transfer of legal and physical custody includes responsibility for the protection, education, care, and control of the child and decision-making on behalf of the child.

Qualifying the Guardian

A relative or foster parent who wants to be considered for legal permanent custody of the child shall cooperate with the background study required under § 245C.08, if the individual has not already done so, and with the home study process required under chapter 245A for providing child foster care and for adoption under section 259.41.

For the background study conducted by the Department of Human Services, the commissioner shall review:

  • Information related to names of substantiated perpetrators of maltreatment of vulnerable adults
  • Department records relating to the maltreatment of children
  • Information from juvenile courts when there is reasonable cause
  • Information from the Bureau of Criminal Apprehension, including information regarding a background study subject’s registration in Minnesota as a predatory offender
  • Information from the child abuse and neglect registry for any State in which the background study subject has resided in the past 5 years
  • Information from national crime information databases when the background study subject is age 18 or older
Procedures for Establishing Guardianship

If the child is not returned home at or before the conclusion of a permanency hearing, the court may order permanent legal and physical custody to a fit and willing relative in the best interests of the child according to the following requirements:

  • An order for transfer of permanent legal and physical custody to a relative shall only be made after the court has reviewed the suitability of the prospective legal and physical custodian.
  • In transferring permanent legal and physical custody to a relative, the juvenile court shall follow the standards applicable under this chapter and chapter 260, and the procedures in the Minnesota Rules of Juvenile Protection Procedure.
  • A permanent legal and physical custodian may not return a child to the permanent care of a parent from whom the court removed custody without the court’s approval and without notice to the responsible social services agency.
  • The social services agency may file a petition naming a fit and willing relative as a proposed permanent legal and physical custodian.
  • When a petition is made for transfer of permanent legal and physical custody to a relative who is not a parent, the court must find that:
    • Transfer of permanent legal and physical custody is in the child’s best interests.
    • Adoption is not in the child’s best interests based on the determinations in the kinship placement agreement required under § 256N.22, subd. 2.
    • The agency made efforts to discuss adoption with the child’s parent or parents, or the agency did not make efforts to discuss adoption and the reasons why efforts were not made.
    • There are reasons to separate siblings during placement, if applicable.
Contents of a Guardianship Order

The juvenile court may maintain jurisdiction over the responsible social services agency, the parents or guardian of the child, the child, and the permanent legal and physical custodian for purposes of ensuring appropriate services are delivered to the child and permanent legal custodian for the purpose of ensuring conditions ordered by the court related to the care and custody of the child are met.

Modification/Revocation of Guardianship

An order for a relative to have permanent legal and physical custody of a child may be modified using standards under §§ 518.18 and 518.185. The social services agency is a party to the proceeding and must receive notice.

A motion to modify a custody order may be granted if the court has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development. A party seeking modification of a custody order shall submit an affidavit setting forth facts supporting the requested modification and shall give notice, together with a copy of the affidavit, to other parties to the proceeding, who may file opposing affidavits.

Eligibility for Guardianship Subsidy

To be eligible for guardianship assistance, there must be a judicial determination that a transfer of permanent legal and physical custody to a relative is in the child’s best interests. For a child under jurisdiction of a Tribal court, a judicial determination under a similar provision in Tribal code indicating that a relative will assume the duty and authority to provide care, control, and protection of a child who is residing in foster care, and to make decisions regarding the child’s education, health care, and general welfare until adulthood, and that this is in the child’s best interests is considered equivalent. Additionally, a child must:

  • Have been removed from the child’s home pursuant to a voluntary placement agreement or court order
  • Have resided with the prospective relative custodian who has been a licensed child foster parent for at least 6 consecutive months or have received from the licensure requirement based on a determination that:
    • An expedited move to permanency is in the child’s best interests.
    • Expedited permanency cannot be completed without provision of guardianship assistance.
    • The prospective relative custodian is uniquely qualified to meet the child’s needs on a permanent basis.
  • Meet applicable citizenship and immigration requirements
  • Have been consulted regarding the proposed transfer of permanent legal and physical custody to a relative if the child is at least age 14

In addition to the above requirements, the child’s prospective relative custodian must meet applicable background study requirements.

To be eligible for title IV-E guardianship assistance, a child must also meet any additional criteria in 42 U.S.C § 673(d). A sibling who meets the criteria for title IV-E guardianship assistance is eligible for assistance if the child and sibling are placed with the same relative custodian.

Links to Agency Policies

Minnesota Administrative Rules, Department of Human Services

Minnesota 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

When placing a child in foster care, the child-placing agency must consider placement with relatives and important friends in the following order:

  • With an individual who is related to the child by blood, marriage, or adoption
  • With an individual who is an important friend with whom the child has resided or had significant contact

The social services agency shall exercise due diligence to identify and notify adult relatives prior to placement or within 30 days after the child’s removal from the parent. The relative search shall be comprehensive in scope and include both maternal and paternal relatives of the child. The search also shall include getting information from the child in an age-appropriate manner about who the child considers to be family members and important friends with whom the child has resided or had significant contact. The relative search must fulfill the agency’s duties under the Indian Child Welfare Act regarding active efforts to prevent the breakup of the Indian family and meet placement preferences.

The relatives must be notified:

  • Of the need for a foster home for the child, the option to become a placement resource, and the possibility of the need for a permanent placement
  • Of their responsibility to keep the agency informed of their current address
  • That the relative may participate in the care and planning for the child
  • That the opportunity for participation may be lost by failing to respond to the notice
  • Of the family foster care licensing requirements, including how to complete an application and how to request a variance from licensing standards that do not present a safety or health risk to the child
  • Of the supports that are available for relatives and children who reside in a family foster home
  • Of the relatives’ right to ask to be notified of any court proceedings regarding the child, to attend the hearings, and the right or opportunity to be heard by the court
Requirements for Placement with Relatives

A county agency may make an emergency placement of a child with a relative who is not licensed to provide foster care, provided the following requirements are met:

  • If possible, the agency must conduct an initial inspection prior to placing the child but no later than 3 working days after placing the child in the home.
  • If the agency determines prior to placement that anyone requiring a background study is disqualified, and the disqualification is one which the commissioner cannot set aside, an emergency placement must not be made.
  • The relatives with whom the emergency placement has been made shall complete the child foster care license application and necessary paperwork within 10 days of the placement.

The granting of a child foster care license to a relative shall be according to the standards in Minnesota Rules, chapter 2960. In licensing a relative, the commissioner shall consider the importance of maintaining the child’s relationship with relatives as an additional significant factor in determining whether a background study disqualification should be set aside under § 245C.22, or a variance should be granted under § 245C.30.

The agency may have access to the criminal history and history of child and adult maltreatment of an individual whose suitability for relative placement is being determined and any member of the relative’s household who is over age 13 when:

  • The relative must be licensed for foster care.
  • A background study is required.
  • The agency has reasonable cause to believe the relative or household member over age 13 has a criminal history that would make transfer of permanent legal and physical custody to the relative not in the child’s best interests.

In cases involving the emergency relative placement of children, the agency may request a name-based criminal records check, to be followed by a fingerprint-based check within 15 calendar days.

Requirements for Placement of Siblings

Siblings should be placed together for foster care and adoption at the earliest possible time, unless it is documented that a joint placement would be contrary to the safety or well-being of any of the siblings or unless it is not possible after reasonable efforts by the responsible social services agency. In cases where siblings cannot be placed together, the agency is required to provide frequent visits or other ongoing interaction between siblings, unless the agency documents that the interaction would be contrary to the safety or well-being of any of the siblings.

Relatives Who May Adopt

Each authorized child-placing agency shall make special efforts to recruit an adoptive family from among the child’s relatives. The term ‘relative’ means a person related to the child by blood, marriage, or adoption, or an individual who is an important friend with whom the child has resided or had significant contact. For an Indian child, relative includes members of the extended family as defined by the law or custom of the Indian child’s Tribe or, in the absence of law or custom, nieces, nephews, or first or second cousins, as provided in the Indian Child Welfare Act of 1978.

The term ‘individual who is related’ means a spouse, parent, natural or adopted child or stepchild, stepparent, stepbrother, stepsister, niece, nephew, adoptive parent, grandparent, sibling, aunt, uncle, or legal guardian.

Requirements for Adoption by Relatives

The residency requirement of 1 year may be waived if the petitioner is an individual who is related to the child. The requirement for placements to be made by the department or licensed agency does not apply to a relative adoption.

A placement for adoption with an individual who is related to the child is subject to a background study. The adoption study must include at least one in-home visit with the prospective adoptive parent. At a minimum, the study must document the following information about the prospective adoptive parent:

  • Whether the prospective adoptive parent and any other person over age 13 living in the home has a felony conviction
  • An assessment of the effect of any conviction or finding of substantiated maltreatment on the capacity of the prospective adoptive parent to safely care for and parent a child

A home study used to consider placement of any child on whose behalf title IV-E adoption assistance payments are to be made must not be approved if a background study reveals a felony conviction at any time for:

  • Child abuse or neglect
  • Spousal abuse
  • A crime against children, including child pornography
  • A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery

A home study used to consider placement of any child on whose behalf title IV-E adoption assistance payments are to be made must not be approved if a background study reveals a felony conviction within the past 5 years for physical assault or battery or a drug-related offense.

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

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

Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts are made upon the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services to meet the needs of the child and the child’s family. Services may include those provided by the responsible social services agency and other culturally appropriate services available in the community.

When determining whether reasonable efforts have been made, the court shall consider whether services to the child and family were:

  • Relevant to the safety and protection of the child
  • Adequate to meet the needs of the child and family
  • Culturally appropriate
  • Available and accessible
  • Consistent and timely
  • Realistic under the circumstances

In the case of an Indian child, the responsible social services agency must provide active efforts, as required by the Indian Child Welfare Act of 1978.

When Reasonable Efforts Are Required

The social services agency has the burden of demonstrating that:

  • It has made reasonable efforts to prevent placement of the child in foster care.
  • It has made reasonable efforts to eliminate the need for removal of the child from the child’s home and to reunify the child with the child’s family at the earliest possible time.
  • It has made reasonable efforts to finalize an alternative permanent home for the child, and it has considered permanent alternative homes for the child inside or outside of the State.
  • Reasonable efforts to prevent placement and to reunify the child with the parent or guardian are not required.
When Reasonable Efforts Are NOT Required

Reasonable efforts always are required except when:

  • A parent has subjected the child to egregious harm.
  • The parent’s parental rights to another child have been terminated involuntarily.
  • The child is an abandoned infant.
  • The parent’s custodial rights have been involuntarily transferred to another relative.
  • A determination has been made that additional reasonable efforts would be futile and unreasonable under the circumstances.
  • The parent has been convicted of murder, manslaughter, assault, or assault with substantial bodily injury, or an attempt or conspiracy to commit any of these crimes, and the victim was another child of the parent.
  • The parent has committed sexual abuse against the child or another child of the parent.
  • The parent has committed an offense that requires registration as a predatory offender under § 243.166, subd. 1b.
  • The parent has been convicted of assault or assault with substantial bodily injury, and the victim was the surviving child.

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Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

A parent with legal and physical custody or a legal custodian may designate a standby or temporary custodian.

If a triggering event has not occurred, only a custodian or legal guardian may file a petition with the court. If a triggering event has occurred, the standby guardian may file.

How to Establish a Standby Guardian

The written designation must identify the designator, the children, the other parent, if any, the standby guardian, and the triggering events. It must include the signed consent of the standby guardian and the other parent, or a statement why the other parent’s consent is not required.

The designation must be signed by the designator in the presence of two witnesses who are age 18 or older and not otherwise named in the designation. The witnesses must also sign the declaration.

Approval without a hearing is permitted if both parents consent to the designation, or there is only one surviving parent. A hearing is required in other cases. An optional designation form is provided in the statute.

How Standby Authority is Activated

The standby custodian’s authority commences upon a triggering event, such as a determination of incapacity or a determination of physical debilitation plus consent. If the petition is approved before the triggering event, no further court action is required.

If a designation has been made but not yet approved by the court, the standby custodian has 60 days from the triggering event to file confirming documents and petition for approval. If the parent dies, the standby custodian shall be appointed permanent guardian without additional petition.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 257B.03
Consent to the designation is required unless the whereabouts of the parent are unknown, parental rights have been terminated, or the parent is unwilling and unable to care for the child.

Authority Relationship of the Parent and the Standby

The commencement of the standby custodian’s authority does not itself divest the designator of any parental rights but confers on the standby custodian concurrent or shared custody of the child.

The standby custodian shall ensure frequent and continuing contact with and physical access by the parent with the child and shall ensure the involvement of the parents, to the greatest extent possible, in decision-making on behalf of the child.

The standby custodian’s authority becomes inactive upon the attending physician’s written certification that the parent is restored to health.

Withdrawing Guardianship

Before the petition has been filed with the court, the designator may revoke the appointment of a standby custodian by destroying the designation and notifying the standby custodian. After a petition has been filed, the designator must file a written revocation with the court and notify the standby custodian in writing.

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

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

 

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

1st Circuit

2nd Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

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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

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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

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

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9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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5th Circuit

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7th Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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