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

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

Mississippi

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: The crime of domestic violence is committed ‘in the physical presence or hearing of a child’ when a child who is under age 16 was, at the time of the offense, living within the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred.

Consequences

In sentencing for the crime of domestic violence, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child.

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Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused child’ means a child whose parent, guardian, custodian, or any person responsible for his or her care or support, whether or not legally obligated to do so, has caused or allowed to be caused upon the child nonaccidental physical injury or other maltreatment. The term ‘abused child’ also means a child who is or has been trafficked within the meaning of the Mississippi Human Trafficking Act by any person, without regard to the relationship of the person to the child.

Neglect

‘Neglected child’ means a child:

  • Whose parent, guardian, custodian, or any person responsible for his or her care or support neglects or, when able to do so, refuses to provide proper and necessary care or support; education as required by law; or medical, surgical, or other care necessary for his or her well-being
  • Who is otherwise without proper care, custody, supervision, or support
  • Who, for any reason, lacks the special care made necessary for him or her by reason of his or her mental condition, whether said mental condition be mentally retarded or mentally ill
  • Who, for any reason, lacks the care necessary for his or her health, morals, or well-being
Sexual Abuse/Exploitation

The term ‘abused child’ includes sexual abuse or sexual exploitation.

‘Sexual abuse’ means obscene or pornographic photographing, filming, or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution, or other such forms of sexual exploitation of children under circumstances that indicate that the child’s health or welfare is harmed or threatened.

Emotional Abuse

The term ‘abused child’ includes emotional abuse or mental injury.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Code § 43-21-353
A report is required when a mandatory reporter has reasonable cause to suspect that a child is abused or neglected.

Persons Responsible for the Child

Responsible persons include:

  • A parent, guardian, or custodian
  • ‘Any person responsible for care or support,’ which refers to the person who is providing for the child at a given time, including, but not limited to, stepparents, foster parents, relatives, nonlicensed babysitters or other similar persons responsible for a child, and staff of residential care facilities and group homes licensed by the department
Exceptions

A parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof, shall not, for that reason alone, be considered to be neglectful.

Physical discipline, including spanking, performed on a child by a parent, guardian, or custodian in a reasonable manner shall not be deemed abuse under this section.

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Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the occurrence of one or more of the following acts between any individuals listed below:

  • Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon
  • Placing, by physical menace or threat, another in fear of imminent serious bodily injury
  • Criminal sexual conduct committed against a minor, as defined by § 97-5-23
  • Stalking, as defined by § 97-3-107
  • Cyberstalking, as defined by § 97-45-15
  • Sexual offenses, as defined by §§ 97-3-65 or 97-3-95
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person is guilty of simple domestic violence who:

  • Attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another
  • Negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm
  • Attempts by physical menace to put another in fear of imminent serious bodily harm when the offense is committed against a current or former spouse of the defendant or a child of that person; a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person; a parent, grandparent, child, grandchild, or someone similarly situated to the defendant; a person who has a current or former dating relationship with the defendant; or a person with whom the defendant has had a biological or legally adopted child

A person is guilty of aggravated domestic violence who:

  • Attempts to cause serious bodily injury to another or causes such an injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life
  • Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm
  • Strangles or attempts to strangle a current or former spouse of the defendant or a child of that person; a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person; a parent, grandparent, child, grandchild, or someone similarly situated to the defendant; a person who has a current or former dating relationship with the defendant; or a person with whom the defendant has had a biological or legally adopted child
Persons Included in the Definition

The following individuals are included:

  • Spouses, former spouses, or persons living as spouses or who formerly lived as spouses
  • Persons having a child or children in common
  • Other individuals related by consanguinity or affinity who reside together or who formerly resided together
  • Individuals who have a current or former dating relationship

‘Dating relationship’ means a social relationship of a romantic or intimate nature between two individuals. It does not include a casual relationship or ordinary fraternization between two individuals in a business or social context. Whether a relationship is a ‘dating relationship’ shall be determined by examining the following factors:

  • The length of the relationship
  • The type of relationship
  • The frequency of interaction between the two individuals involved in the relationship

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Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child care giver, minister, law enforcement officer, school attendance officer, public school district employee, nonpublic school employee, licensed professional counselor, or any other person participating in making a required report pursuant to the reporting laws or participating in a judicial proceeding resulting therefrom shall be presumed to be acting in good faith.

Any person or institution reporting in good faith shall be immune from any civil or criminal liability that might otherwise be incurred or imposed.

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Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has reasonable cause to suspect that a child is abused or neglected shall immediately make an oral report to the Department of Human Services, to be followed as soon as possible by a written report.

Content of Reports

Any report to the department shall contain:

  • The names and addresses of the child, the child’s parents, or other persons responsible for the child’s care
  • The child’s age
  • The nature and extent of injuries, including any evidence of prior injuries
  • Any other information that might be helpful in establishing the cause of the injury and the identity of the perpetrator
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The Department of Human Services shall maintain a statewide incoming wide-area telephone service or similar service for the purpose of receiving reports of suspected cases of child abuse. When the department receives a report, it shall immediately make a referral to the Youth Court intake unit. The intake unit shall promptly comply with § 43-21-357.

Initial Screening Decisions

When a report is received, the department will determine:

  • If the family can be located
  • If the alleged perpetrator is a parent, guardian, relative, someone in a caregiving role, out-of-home care or foster care provider, other legal caregiver, or a person the parent allows to have access to the child
  • If the report alleges maltreatment of the child that meets statutory and department criteria of maltreatment
  • If the child has been harmed or is in imminent risk of being harmed

After gathering as much information as possible, department staff will screen the report; this task must be completed immediately upon receipt of report. Staff will use the statutory criteria to make the screening decision:

  • Level One: A report that does not meet the statutory criteria is screened out and may receive a referral for information or for services.
  • Level Two: A report that meets the statutory criteria but is not considered felony child abuse, or the alleged victim is not a foster child, is screened in and assigned to a worker who must initiate the investigation within 72 hours of assignment.
  • Level Three: A report that is considered a felony or involves a foster child is screened in and assigned for investigation. The assigned worker has 24 hours from assignment to initiate the investigation.
Agency Conducting the Assessment/Investigation

If the Youth Court intake unit receives a neglect or abuse report, the intake unit shall immediately forward the complaint to the Department of Human Services to promptly make an investigation or report concerning the child and any other children in the same environment and promptly present the findings to the Youth Court intake unit.

In any investigation of a report made under this chapter of the abuse or neglect of a child, the department may request the appropriate law enforcement officer with jurisdiction to accompany the department in its investigation. In such cases the law enforcement officer shall comply with such request.

Upon receiving a report that a child has been abused in such a manner as to cause serious bodily harm or abuse that would be a felony under State or Federal law, the department shall immediately notify the law enforcement agency in whose jurisdiction the abuse occurred and shall notify the appropriate prosecutor within 48 hours. The law enforcement agency and the department shall investigate the reported abuse immediately, file a preliminary report with the appropriate prosecutor’s office within 24 hours, and make additional reports as new or additional information or evidence becomes available.

Assessment/Investigation Procedures

If contact information is provided on the reporter, the worker assigned the investigation will contact the reporter as the first step in the investigation. The purposes of contacting the reporter are:

  • To get additional information in regard to the abuse or neglect being reported
  • To inform the reporter of the role and purpose of the department in its response to the report

The investigation will include interviews with the parent, guardian, caregiver, or alleged perpetrator and the alleged child victim. Medical examinations of children should occur when there are specific allegations indicating injury that can be corroborated and verified by an examination and the initial phases of the investigation reveal information indicating that a medical examination is necessary and warranted in order to determine whether or not there is evidence to substantiate any harm or maltreatment.

A safety assessment is completed in all situations in which the report has been assigned a Level Two or Level Three investigation. The safety assessment addresses the following areas:

  • Physical harm or injury
  • Neglect of basic needs
  • Family strengths and needs
  • Prior history of abuse, neglect, exploitation, or domestic violence
  • Protective capacity of the parent or caregiver

A risk assessment assesses the well-being of the child and the risk factors for abuse and neglect, including:

  • The nature of the abuse and/or neglect
  • The caregiver’s ability to provide basic needs
  • The parent or caregiver’s level of functioning and support system
  • Family and caregiver-child relationships, including parenting style, parenting knowledge and skill, and discipline techniques
Timeframes for Completing Investigations

The safety assessment is completed within 7 calendar days of the report being assigned. The risk assessment shall be addressed simultaneously with the safety assessment but must be completed within 25 calendar days of assignment and along with the completed investigation. The supervisor has 5 calendar days to approve the findings.

Classification of Reports

When the worker completes an investigation, a determination is made to support the disposition of the report. Report findings are either substantiated or unsubstantiated. This determination is made based upon:

  • Substantiation criteria
  • The Safety Checklist for Children
  • The results of the safety and risk assessments
  • The information gathered in interviews
  • Direct observation
  • Medical or psychological information

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Parental Drug Use as Child Abuse

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Current Through April 2015

It is unlawful for any person to knowingly or intentionally:

  • Purchase, possess, transfer, manufacture, attempt to manufacture, or distribute any two or more of the listed precursor chemicals or drugs in any amount with the intent to unlawfully manufacture a controlled substance
  • Purchase, possess, transfer, manufacture, attempt to manufacture, or distribute any two or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance

Any person who violates this subsection, upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed 8 years and shall be fined not less than $5,000 nor more than $50,000, or both.

Any person who violates the provisions of this section with children under age 18 present may be subject to a term of imprisonment, a fine, or both, of twice that provided in this section.

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Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

A guardian ad litem (GAL) shall be appointed for the child. In cases where the court appoints a layman as GAL, the court shall also appoint an attorney to represent the child.

The youth court shall appoint a GAL for the child:

  • When a child has no parent, guardian, or custodian
  • When the youth court cannot acquire personal jurisdiction over a parent, guardian, or custodian
  • When the parent is a minor or a person of unsound mind
  • When the parent is indifferent to the interests of the child or if the interests of the child and the parent, considered in the context of the case, appear to conflict
  • In every case involving an abused or neglected child that results in a judicial proceeding
  • In any other instance where the youth court finds appointment of a GAL to be in the best interests of the child

The GAL shall be appointed by the court when custody is ordered or at the first judicial hearing regarding the case, whichever occurs first.

Each party shall have the right to be represented by counsel at all stages of the proceedings, including, but not limited to, detention, adjudicatory and disposition hearings, and postdisposition matters. If indigent, the child shall have the right to have counsel appointed for him or her by the youth court.

The Use of Court-Appointed Special Advocates (CASAs)

The court, in its discretion, may appoint a trained, volunteer layperson to assist children subject to the provisions of this section in addition to the appointment of a GAL.

Qualifications/Training

The GAL shall be a competent person who has no adverse interests to the child. The court shall ensure that the GAL is adequately instructed on the proper performance of his or her duties.

The court may appoint either a suitable attorney or a suitable layperson as a GAL. From and after January 1, 1999, in order to be eligible for an appointment as a GAL, such attorney or layperson must have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding such appointment. The Mississippi Judicial College shall determine the amount of child protection and juvenile justice training that shall satisfy the requirements of this section. The Administrative Office of Courts shall maintain a roll of all attorneys and laypersons eligible to be appointed as a GAL.

Specific Duties

In addition to all other duties required by law, a GAL shall have the duty to protect the interests of a child for whom he or she has been appointed GAL. The GAL shall investigate, make recommendations to the court, or enter reports as necessary to hold paramount the child’s best interests. The GAL is not an adversary party, and the court shall ensure that GALs perform their duties properly and in the best interests of their wards.

Upon appointment of a GAL, the youth court shall continue any pending proceedings for a reasonable time to allow the GAL to familiarize himself or herself with the matter, consult with counsel, and prepare his or her participation in the case.

The child’s attorney shall owe the same duties of undivided loyalty, confidentiality, and competent representation to the child or minor as is due an adult client pursuant to the Mississippi Rules of Professional Conduct.

How the Representative Is Compensated

Upon order of the youth court, the GAL shall be paid a reasonable fee as determined by the youth court judge or referee out of the county general fund. To be eligible for this fee, the GAL shall submit an accounting of the time spent in performance of his or her duties to the court.

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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

The case plan for each child is developed within 30 calendar days from the date of removal from the home. Within 30 calendar days of a child’s entrance into foster care, the DFCS caseworker shall convene a family team to develop service plans and visitation plans for both the child and the parents with the participation of all team meeting participants. The family service plan is developed and submitted to the supervisor within 30 calendar days of the custody date, unless the court determines otherwise.

Who May Participate in the Case Planning Process

Family engagement is an ongoing process of involving the family from the initial investigation throughout the life of the case. The caseworker must engage the family, extended family members, and formal and informal support networks through family team meetings to help them make a permanent plan for the child. The caseworker will work with the family to develop an adult and child individualized service plan, listing tasks and goals needing achievement to facilitate the permanent plan.

The case plan for each child is developed jointly with the parent or guardian of the child.

The family team meeting includes the caseworker, the caseworker’s direct supervisor, the foster caregiver (if applicable), the child’s parent or guardian, other family members (if appropriate), and the child unless there is justification for excluding the child from the planning process.

Contents of a Case Plan

The case plan for each child:

  • Includes a description of the services offered and provided to prevent removal of the child from the home and to reunify the family
  • Includes a description of the type of home or institution in which the child is placed
  • Includes a discussion of the safety and appropriateness of the placement
  • Includes a plan for ensuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to facilitate the child’s return home or for permanent placement
  • Includes a plan for ensuring that appropriate services are provided to the child and foster parents in order to address the needs of the child while in foster care
  • When appropriate for a child age 16 or older, includes a written description of the programs and services to help the child prepare for the transition from foster care to independent living
  • In the 90-day period immediately prior to the child’s 18th birthday, addresses the assistance and support needed in developing a transition plan that is personalized and includes specific options on housing, health insurance, education, local opportunities for mentors and continuing support services, and work force supports and employment services
  • Includes information about the importance of designating another individual to make health-care treatment decisions on behalf of the child if the child becomes unable to participate in such decisions, and the child does not have, or does not want, a relative who would otherwise be authorized under State/Tribal law to make such decisions
  • Provides the child with the option to execute a health-care power-of-attorney, health-care proxy, or other similar document recognized under State/Tribal law
  • Documents the steps to finalize a placement when the case plan goal is or becomes adoption or placement in another permanent home

When the case plan goal is adoption, at a minimum the documentation shall include child-specific recruitment efforts such as the use of Tribal, State, regional, and national adoption exchanges, including electronic exchange systems, to facilitate orderly and timely placements.

The family service plan (FSP) should be individualized, strengths-based, family-focused, and culturally responsive. In a case in which the child in custody has a permanent plan of reunification, an FSP between the caseworker and the parents, caregivers and child is required. The FSP should be used as a means of facilitating the child’s return home.

The parents will have a 6-month period in which to complete the tasks in the FSP. At the end of 6 months, the court may direct DFCS to: (1) continue to work with the parents for return of the child to their home, (2) begin procedures to terminate parental rights, or (3) pursue another permanency plan.

Each FSP and revision of the plans shall include the following:

  • Service goals, desired outcomes, and timeframes for achieving them
  • Service and supports to be provided, and by whom
  • The signatures of the parents, with whom reunification is planned, and when appropriate, the child or youth
  • Unmet services and support needs that impact safety, permanency, and well-being
  • Efforts to maintain and strengthen relationships
  • Educational needs and goals
  • The need for culturally responsive services and the support of the family’s informal social network

The goals and tasks set forth within the FSP shall be a direct reflection of the decisions made within the family team meeting.

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Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The Department of Human Services shall complete an administrative review on each child within the first 3 months and a foster care review once every 6 months after the child’s initial 48-hour shelter hearing.

A permanency hearing must be held:

  • Within 30 days of a finding that reasonable efforts to reunify the family are not required
  • With 12 months after the earlier of an adjudication that the child has been abused or neglected or the date of the child’s removal from the allegedly abusive or neglectful custodian and/or parent
Persons Entitled to Attend Hearings

The following persons may be present and give testimony at the hearing:

  • The parent
  • The foster parent
  • The grandparents
  • The guardian ad litem
  • Representatives of any private care agency that has cared for the child
  • The family protection worker or family protection specialist assigned to the case
Determinations Made at Hearings

The review shall include at a minimum an evaluation of the child based on the following:

  • The extent of the care and support provided by the parents while the child is in temporary custody
  • The extent of communication with the child by parents or guardian
  • The degree of compliance by the agency and the parents with the social service plan
  • The methods of achieving the goal and the plan establishing a permanent home for the child
  • Social services offered and/or utilized to facilitate plans for establishing a permanent home for the child
Permanency Options

The goal of the service plan shall be:

  • Return the child to his or her natural parent(s)
  • Refer the child to the appropriate court for termination of parental rights and placement in a permanent relative’s home, adoptive home, or foster/adoptive home

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Determining the Best Interests of the Child

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Current Through March 2016

This chapter shall be liberally construed to the end that each child coming within the jurisdiction of the youth court shall become a responsible, accountable, and productive citizen, and that each such child shall receive such care, guidance, and control, preferably in such child’s own home, as is conducive toward that end and is in the State’s and the child’s best interests. It is the public policy of this State that the parents of each child shall be primarily responsible for the care, support, education, and welfare of such children; however, when it is necessary that a child be removed from the control of such child’s parents, the youth court shall secure proper care for such child.

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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

Grounds for termination of parental rights shall be based on one or more of the following factors:

  • The parent has deserted the child without means of identification or abandoned a child.
  • The parent has made no contact with a child under age 3 for 6 months or a child age 3 or older for 1 year.
  • The parent has been responsible for a series of abusive incidents concerning one or more children.
  • When the child has been in the care and custody of a licensed child-caring agency or the Department of Human Services for at least 1 year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to his or her parents, and:
    • The parent has failed to exercise reasonable available visitation with the child.
    • The parent, having agreed to a plan to reunify with the child, fails to implement the plan so that the child caring-agency is unable to return the child to the parent.
  • The parent exhibits ongoing behavior that would make it impossible to return the child to the parent’s care and custody because:
    • The parent has a diagnosable condition that makes the parent unable to assume minimally, acceptable care of the child that is unlikely to change within a reasonable time, such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation.
    • The parent fails to eliminate behavior, identified by the child-caring agency or the court, which prevents placement of the child with the parent in spite of diligent efforts of the child-caring agency to assist the parent.
  • There is an extreme and deep-seated antipathy by the child toward the parent, or there is some other substantial erosion of the relationship between the parent and child that was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment.
  • The parent has been convicted of any of the following offenses against any child:
    • Rape, sexual battery, touching a child for lustful purposes, or exploitation
    • Felonious abuse or battery of a child
    • Carnal knowledge of a step- or adopted child or a child of a cohabitating partner
    • Murder or voluntary manslaughter of another child of the parent, or aiding, abetting, attempting, conspiring, or soliciting to commit such murder or voluntary manslaughter
    • Felony assault that results in the serious bodily injury to the surviving child or another child of the parent
  • The child has been adjudicated to have been abused or neglected and has been placed in out-of-home care, and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interests.
Circumstances That Are Exceptions to Termination of Parental Rights

For any child who has been in foster care for 15 of the last 22 months, regardless of whether the foster care was continuous for all of those 22 months, the department shall file a petition to terminate the parental rights of the child’s parents. The time period starts to run from the date the court makes a finding of abuse and/or neglect or 60 days from when the child was removed from his or her home, whichever is earlier. The department can choose not to file a termination of parental rights petition if the following apply:

  • The child is being cared for by a relative.
  • The department has documented compelling and extraordinary reasons why termination of parental rights would not be in the best interests of the child.

Legal custody and guardianship by persons other than the parent, as well as other permanent alternatives that end the supervision by the Department of Human Services, should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interests of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

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Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

An infant who is 72 hours old or younger may be relinquished.

Who May Relinquish the Infant

A child is relinquished when the child is voluntarily delivered to the provider by the child’s parent and the parent did not express an intent to return for the child.

Who May Receive the Infant

The child may be delivered to an emergency medical services provider. The term ’emergency medical services provider’ means a licensed hospital that operates an emergency department or a licensed adoption agency.

An emergency medical services provider does not include the offices, clinics, surgeries, or treatment facilities of private physicians or dentists. No individual licensed health-care provider, including physicians, dentists, nurses, physician assistants, or other health professionals shall be deemed to be an emergency medical services provider unless such individual voluntarily assumes responsibility for the custody of the child.

Responsibilities of the Safe Haven Provider

An emergency medical services provider, without a court order, shall take possession of a newborn who is voluntarily delivered to the provider by the child’s parent and the parent did not express an intent to return for the child.

An emergency medical services provider who takes possession of a child shall perform any act necessary to protect the physical health or safety of the child.

No later than the close of the first business day after the date on which an emergency medical services provider takes possession of a child, the provider shall notify the Department of Human Services.

Immunity for the Provider

A person or entity taking possession of a child under the provisions of this article shall be immune from liability for any civil action arising out of any act or omission resulting from taking possession of the child unless the act or omission was the result of the person’s or entity’s gross negligence or willful misconduct.

Protection for Relinquishing Parent

The parent who surrenders the baby shall not be required to provide any information pertaining to his or her identity, nor shall the emergency medical services provider inquire as to same. If the identity of the parent is known to the emergency medical services provider, the emergency medical services provider shall keep the identity confidential.

A female presenting herself to a hospital through the emergency room or otherwise, who is subsequently admitted for purposes of labor and delivery, does not give up the legal protections or anonymity guaranteed under this section. If the mother clearly expresses a desire to voluntarily surrender custody of the newborn after birth, the emergency medical services provider can take possession of the child, without further action by the mother, as if the child had been presented to the emergency medical services provider in the same manner outlined above.

If the mother expresses a desire to remain anonymous, identifying information may be obtained for purposes of securing payment of labor and delivery costs only. If the birth mother is a minor, the hospital may use the identifying information to secure payment through Medicaid but shall not notify the minor’s parent or guardian without the minor’s consent. The identity of the birth mother shall not be placed on the birth certificate or disclosed to the Department of Human Services.

Relinquishment to a safe haven is an affirmative defense to prosecution for abandonment, neglect, or exposure of the child.

Effect on Parental Rights

There is a presumption that by relinquishing a child in accordance with this section, the parent consents to the termination of his or her parental rights with respect to the child. As such, the parent waives the right to notification required by subsequent court proceedings.

The Department of Human Services shall assume control and custody of the child.

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Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘parent’ means the father or mother to whom the child has been born or by whom the child has been legally adopted.

‘Guardian’ means a court-appointed guardian of the person of a child. A ‘custodian’ means any person having the present care or custody of a child whether such person be a parent or otherwise. A ‘legal custodian’ is a court-appointed custodian of the child.

The term ‘custody’ means the physical possession of the child by any person. The term ‘legal custody’ means the legal status created by a court order that gives the legal custodian the responsibilities of physical possession of the child and the duty to provide the child with food, shelter, education, and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.

The term ‘durable legal custody’ means the legal status created by a court order that gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide the child with care, nurture, welfare, food, shelter, education, and reasonable medical care. All these duties are subject to the residual rights and responsibilities of the natural parents or guardians of the child or children.

Purpose of Guardianship

Legal custody and guardianship by persons other than the parent, as well as other permanent alternatives that end supervision by the Department of Human Services, should be considered as alternatives to the termination of parental rights. These alternatives should be selected when, in the best interests of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

A Guardian’s Rights and Responsibilities

Durable legal custody gives the custodian the responsibilities of physical possession of the child and the duty to provide the child with care, nurture, welfare, food, shelter, education, and reasonable medical care. Legal guardianship transfers to the caregiver the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision-making. The department will be released from any oversight or monitoring responsibilities in either durable legal custody or legal guardianship unless ordered otherwise by the court. The birth parents maintain their parental rights.

Qualifying the Guardian

The caseworker will have the following responsibilities in achieving durable legal custody and/or guardianship:

  • Enlist the family’s cooperation in identifying all possible relative resources and make contact with them in a timely manner
  • Assure that a home evaluation, including police and background checks of any and/or all relatives who are being considered, has been completed
  • Conduct a home evaluation that includes an assessment of the safety of the home
  • Discuss alternate permanency options, including adoption, with all parties involved in terms they understand to ensure that this is the most appropriate option available for this child
  • Document all efforts to engage families in the planning and development of child’s permanent goals
  • Inform the court of the identified individuals’ interest and ability to assume durable legal custody and/or legal guardianship
  • Obtain approval of the goal from the court
  • Provide support such as referrals, financial services, and/or other follow-up services to secure the placement
Procedures for Establishing Guardianship

If the court finds that temporary relative placement, adoption, or foster care placement is inappropriate, unavailable, or otherwise not in the best interests of the child, durable legal custody may be granted by the court to any person, subject to any limitations and conditions that the court may prescribe. Such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least 1 year under the supervision of the Department of Human Services.

In regulation: No child shall be assigned a permanency goal of durable legal custody unless there are documented efforts in the child’s case record to move the child to adoption and documentation of a reasonable basis why it is in the child’s best interests not to be considered for adoption.

Durable legal custody or legal guardianship is achieved after the court grants custody to the placement resource. No further review hearings are necessary. The department is relieved of custody of the child and from any oversight or monitoring responsibilities unless otherwise ordered by the court.

Contents of a Guardianship Order

In the durable legal custody agreement, the custodian agrees to the following terms:

  • The child will be allowed to remain in the home of the custodian and be raised as a member of the family group until the child reaches adulthood.
  • The custodian will provide continued care for the child in the same home in order to restore and create a permanent and stable foundation for the child.
  • The custodian agrees to act as the primary parental figure of the child until he or she becomes an adult, marries, or is otherwise freed from minority.
  • The custodian agrees that he or she will not seek the removal of the child from his or her home except under the most serious and emergency circumstances, acknowledging his or her willingness to accept legal, physical, and financial responsibility if durable legal custody is accepted and ordered by the court.
  • The custodian acknowledges that the option of adoption was presented and discussed and determined not to be in the best interests of the child and agrees and understands that he or she is accepting legal and physical custody of the child and that any board payment and/or Medicaid being received through the department will end at the time the court finalizes custody.
Modification/Revocation of Guardianship

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

Eligibility for Guardianship Subsidy

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

Links to Agency Policies

Mississippi Division of Family and Children’s Services, Policy Manual, Section D: Foster Care Policyexternal link (PDF – 1,132 KB)

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Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

When the Department of Human Services is considering the placement of a child in a foster home and when the department deems it to be in the best interests of the child, the department shall give first priority to one of the child’s relatives within the third degree, as computed by the civil law rule.

Requirements for Placement with Relatives

In placing the child in a relative’s home, the department may waive any rule, regulation, or policy applicable to placement in foster care that would otherwise require the child to have a separate bed or bedroom or have a bedroom of a certain size if placing the child in a relative’s home would be in the best interests of the child and such requirements cannot be met in the relative’s home.

For a child placed in the care of the child’s relative within the third degree by the State or a county Department of Human Services, the department may make monthly payments to defray the relative’s expense of furnishing room and board. The department’s relative care payment shall be in an amount up to 100 percent of the amount of the foster care board payment. The department may continue to make those payments to the relative after the department relinquishes legal custody of the child to the relative.

Relatives must undergo criminal background checks.

Requirements for Placement of Siblings

When selecting an adoptive family, placement of siblings as a family group is usually the preferred placement choice unless contraindicated by:

  • Assessment of the nature of sibling relationships
  • The likelihood that placement would be unduly delayed by waiting for a family who will accept all of the children in a sibling group
  • The existence of significant affectionate attachment between a child and foster parents who wish to adopt only the member of the sibling group already placed in their home

The child-placing agency may agree to [separating siblings who are in different foster placements] when an assessment indicates that the child’s psychological bond to the foster parents is so strong that it is more important to the child than the sibling relationship. In this situation, an assessment must be made of the foster parents’ willingness to maintain sibling contact after finalization of the adoption.

Relatives Who May Adopt

A relative is a person related to the child within the third degree, according to civil law.

Requirements for Adoption by Relatives

For a child who is in the legal custody of the Department of Human Services and has been in the physical custody of a relative, the department may pay the costs of adoption proceedings initiated by relatives if they are unable to pay such costs.

An adoption investigation is not required when the petitioner is a relative or stepparent of the child. A 6-month waiting period for the final decree is not required for an adoption by a relative or a stepparent.

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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

Family preservation services are services designed to help families alleviate risks or crises that might lead to out-of-home placement of children. The services may include procedures to maintain the safety of children in their own homes, support to families preparing to reunify or adopt, and assistance to families in obtaining services and other sources of support necessary to address their multiple needs in a culturally sensitive environment.

Family support services are preventive community-based activities designed to alleviate stress and to promote parental competencies and behaviors that will increase the ability of families to successfully nurture their children and will enable families to use other resources and opportunities available in the community. These services may include supportive networks designed to enhance child-rearing abilities of parents and to help compensate for the increased social isolation and vulnerability of families. Examples of these services and activities include:

  • Respite care for parents and other caregivers
  • Early developmental screening of children to assess their needs and assistance in obtaining specific services to meet their needs
  • Mentoring, tutoring, and health education for youth
  • A range of center-based activities, such as informal interactions in drop-in centers and parent support groups and home visiting programs
When Reasonable Efforts Are Required

If the child has not been taken into care previously, the court shall determine:

  • Reasonable efforts have been made to maintain the child within his or her own home unless the circumstances warrant his or her removal, and there is no reasonable alternative to custody.
  • The circumstances are of such an urgent nature that no reasonable efforts have been made to maintain the child within his or her own home, and there is no reasonable alternative to custody.

If the court finds that the child should be taken into care, the court shall order that reasonable efforts be made toward the reunification of the child with his or her family.

If the child has been taken into care before the disposition hearing, the court shall determine whether reasonable efforts were made by the Department of Human Services to finalize the child’s permanency plan that was in effect on the date of the disposition hearing.

When Reasonable Efforts Are NOT Required

Reasonable efforts to maintain the child within his or her home shall not be required if the court determines that:

  • The parent has subjected the child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, and sexual abuse.
  • The parent has been convicted of murder or voluntary manslaughter of another child of that parent; aiding, abetting, attempting, conspiring, or soliciting to commit that murder or voluntary manslaughter; or a felony assault that results in the serious bodily injury to the surviving child or another child of that parent.
  • The parental rights of the parent to a sibling have been terminated involuntarily.
  • Continuation of the child’s residence within his or her own home would be contrary to the welfare of the child, and placement of the child in foster care is in the best interests of the 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

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd 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).

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US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

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