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

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

Missouri

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means any physical injury inflicted on a child by other than accidental means by those responsible for the child’s care, custody, and control.

Neglect

‘Neglect’ means failure to provide, by those responsible for the care, custody, and control of the child, proper or necessary support; education as required by law; nutrition; or medical, surgical, or any other care necessary for the child’s well-being.

Sexual Abuse/Exploitation

The term ‘abuse’ includes sexual abuse.

Emotional Abuse

The term ‘abuse’ includes emotional abuse inflicted on a child by those responsible for the child’s care, custody, and control.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Stat. § 210.115
A report is required when a mandatory reporter has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

Persons Responsible for the Child

The term ‘those responsible for the care, custody, and control of the child’ includes, but is not limited to:

  • The parents or guardian of a child
  • Other members of the child’s household
  • Anyone exercising supervision over a child for any part of a 24-hour day
  • Any adult who has access to the child, based on a relationship to the parents of the child, members of the child’s household, or the family
Exceptions

Discipline, including spanking, administered in a reasonable manner, shall not be considered abuse.

A child who does not receive specified medical treatment by reason of the legitimate practice of the religious belief of the child’s parents, guardian, or others legally responsible for the child shall not be found to be an abused or neglected child for that reason alone.

The division may accept reports concerning such a child and may subsequently investigate or conduct a family assessment as a result of that report. This exception shall not limit the administrative or judicial authority of the State to ensure that medical services are provided to the child when the child’s health requires it.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ includes, but is not limited to, the occurrence of any of the following acts, attempts, or threats against a person who may be protected pursuant to this chapter:

  • ‘Assault,’ which means purposely or knowingly placing or attempting to place another in fear of physical harm
  • ‘Battery,’ which means purposely or knowingly causing physical harm to another with or without a deadly weapon
  • ‘Coercion,’ which means compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage
  • ‘Harassment,’ which means engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child, serves no legitimate purpose, and causes a reasonable adult or child to suffer substantial emotional distress, including, but not limited to:
    • Following another about in a public place or places
    • Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity
  • ‘Sexual assault,’ which means causing or attempting to cause another to engage involuntarily in any sexual act by force, threat of force, or duress
  • ‘Unlawful imprisonment,’ which means holding, confining, detaining, or abducting another person against that person’s will
  • ‘Domestic violence,’ which means abuse or stalking committed by a family or household member, as such terms are defined in this section

‘Stalking’ is when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person commits the crime of ‘domestic assault in the first degree’ if he or she attempts to kill or knowingly causes or attempts to cause serious physical injury to a family or household member, including any child who is a member of the family or household, as defined in § 455.010.

A person commits the crime of ‘domestic assault in the second degree’ if the act involves a family or household member, including any child who is a member of the family or household, as defined in § 455.010, and he or she:

  • Attempts to cause or knowingly causes physical injury to such person by any means, including, but not limited to, by use of a deadly weapon or dangerous instrument, or by choking or strangulation
  • Recklessly causes serious physical injury to such person
  • Recklessly causes physical injury to such person by means of any deadly weapon

A person commits the crime of ‘domestic assault in the third degree’ if the act involves a family or household member, including any child who is a member of the family or household, as defined in § 455.010, and:

  • The person attempts to cause or recklessly causes physical injury to such person.
  • With criminal negligence, the person causes physical injury by means of a deadly weapon or dangerous instrument.
  • The person purposely places the other person in apprehension of immediate physical injury by any means.
  • The person recklessly engages in conduct that creates a grave risk of death or serious physical injury.
  • The person knowingly causes physical contact with the family or household member knowing the other person will regard the contact as offensive.
  • The person knowingly attempts to cause or causes the isolation of the other person by unreasonably and substantially restricting or limiting his or her access to other persons, telecommunication devices, or transportation for the purpose of isolation.
Persons Included in the Definition

In civil law: ‘Family’ or ‘household member’ means spouses, former spouses, any person related by blood or marriage, persons who are presently residing together or have resided together in the past, any person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim, and anyone who has a child in common regardless of whether they have been married or have resided together at any time.

In criminal law: ‘Family’ or ‘household member’ means spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, and adults who have a child in common regardless of whether they have been married or have resided together at any time.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, official, or institution complying with the provisions of the reporting laws in making a report; taking color photographs and/or making radiologic examinations; removing or retaining a child pursuant to statute; or cooperating with the division or any other law enforcement agency, juvenile office, court, or child protective service agency of this or any other State; in any activities pursuant to statute or any other allegation of child abuse, neglect, or assault shall have immunity from any liability, civil or criminal, that otherwise might result by reason of such actions.

However, any person, official, or institution intentionally filing a false report, or acting in bad faith or with ill intent, shall not have immunity from any liability, civil or criminal. Any such person, official, or institution shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.

Any person who is not a school district employee who makes a report of child abuse by a school employee to any employee of the school district shall have immunity from any liability, civil or criminal, that otherwise might result because of such report. Any such person who makes a false report while knowing that the report is false, or who acts in bad faith or with ill intent in making such report, shall not have immunity from any liability, civil or criminal. Any such person shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

When a mandated reporter has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect, that person shall immediately cause an oral report to be made to the Children’s Division of the Department of Social Services.

Content of Reports

Reports shall contain the following information:

  • The names and addresses of the child, the child’s parents, or other persons responsible for the child’s care
  • The child’s age, sex, and race
  • The nature and extent of the child’s injuries, abuse, or neglect, including any evidence of previous injuries, abuse, or neglect to the child or the child’s siblings
  • The name, age, and address of the person responsible for the child’s injuries, if known
  • Family composition
  • The source of the report
  • The name, address, occupation, and contact information of the reporter
  • Actions taken by the reporter
  • Any other information that might be helpful
Reporting Suspicious Deaths

Any mandated reporter who has probable cause to suspect that a child has died as a result of abuse or neglect shall report that fact to the medical examiner or coroner.

Reporting Substance-Exposed Infants

Any physician or health-care provider may refer to the Department of Health and Senior Services families in which children may have been exposed to a controlled substance or alcohol, as evidenced by:

  • Medical documentation of signs and symptoms consistent with controlled substances or alcohol exposure at birth
  • Results of a confirmed toxicology test performed on the mother or the child at the child’s birth
  • A written assessment made by a physician, health-care provider, or the Division of Family Services that documents the child as being at risk of abuse or neglect

Nothing in this section shall preclude a physician or other mandated reporter from reporting abuse or neglect of a child as required by the provisions of § 210.115.

Agency Receiving the Reports

Reports shall be made to the Children’s Division of the Department of Social Services.

Initial Screening Decisions

The division shall utilize structured decision-making protocols for classification purposes of all child abuse and neglect reports. The protocols developed by the division shall give priority to ensuring the well-being and safety of the child. All child abuse and neglect reports shall be initiated within 24 hours and shall be classified based upon the reported risk and injury to the child.

In regulation: All reports received by the hotline shall be screened within 24 hours of receipt and shall be classified based upon the reported safety risk and injury to the child. In all cases, the division must have face-to-face contact with all children in the alleged victim’s household within 72 hours.

If the call is screened in, it will be accepted as a child abuse/neglect report and sent to the county office. If the call is screened out, the call will be documented and entered into the database, but no further action will be taken unless the division decides to refer it for appropriate community service. After response assignment, the report is sent to the local division office for review. The local division office has the option to change the response assignment, given additional information or prior history with the family. Each investigation will be classified as a 3-hour, 24-hour, or 72-hour call, based upon information received by the hotline.

Agency Conducting the Assessment/Investigation

The local office shall contact the appropriate law enforcement agency immediately upon receipt of a report that division personnel determine merits an investigation and provide such agency with a detailed description of the report received. In such cases, the local division office shall request the assistance of the local law enforcement agency in all aspects of the investigation.

The local office of the division shall cause an investigation or family assessment and services approach to be initiated in accordance with established protocols.

Multidisciplinary teams shall be used whenever conducting the investigation in conjunction with local law enforcement. Multidisciplinary teams shall be used in providing protective or preventive social services, including the services of law enforcement, a liaison of the local public school, the juvenile officer, the juvenile court, and other agencies, both public and private.

Assessment/Investigation Procedures

The investigation shall include, but not be limited to:

  • The nature, extent, and cause of the abuse or neglect
  • The identity and age of the person responsible for the abuse or neglect
  • The names and conditions of other children in the home, if any
  • The home environment and the relationship of the subject child to the parents or other persons responsible for the child’s care
  • Any indication of incidents of physical violence against any other household or family member
  • Other pertinent data

When a report has been made by a mandated reporter, the division shall contact that person within 48 hours of the receipt of the report in order to ensure that full information has been received and to obtain any additional information or medical records, or both, that may be pertinent.

If the appropriate local division personnel determine after an investigation has begun that completing an investigation is not appropriate, the division shall conduct a family assessment. For the family assessment, the division shall:

  • Assess any service needs of the family
  • Provide services that are voluntary and time-limited unless it is determined by the division based on the assessment of risk that there will be a high risk of abuse or neglect if the family refuses to accept the services
  • Commence an immediate investigation if at any time during the family assessment the division determines that an investigation is required
Timeframes for Completing Investigations

If the report indicates that educational neglect is the only complaint and there is no suspicion of other neglect or abuse, the investigation shall be initiated within 72 hours of receipt of the report. If the report indicates the child is in danger of serious physical harm or threat to life, an investigation shall include direct observation of the subject child within 24 hours.

The division shall complete all investigations within 30 days unless good cause for the failure to complete the investigation is documented in the information system. If a child involved in a pending investigation dies, the investigation shall remain open until the division’s investigation surrounding the death is completed.

Classification of Reports

The results of the investigation shall be classified as either of the following:

  • That the division has determined by a probable cause finding prior to August 28, 2004, or by a preponderance of the evidence after August 28, 2004, that abuse or neglect exists
  • That the division has not made a probable cause finding or determined by a preponderance of the evidence that abuse or neglect exists

Parental Drug Use as Child Abuse

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Current Through April 2015

Effective until January 1, 2017: A person commits the crime of endangering the welfare of a child in the first degree if:

  • The person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child younger than age 17.
  • Such person enlists the aid, either through payment or coercion, of a person younger than age 17 to unlawfully manufacture, compound, produce, prepare, sell, transport, test, or analyze amphetamine or methamphetamine or any of their analogues, or to obtain any material used to manufacture, compound, produce, prepare, test, or analyze amphetamine or methamphetamine or any of their analogues.
  • Such person, in the presence of a person younger than age 17 or in a residence where a person younger than age 17 resides, unlawfully manufactures, or attempts to manufacture, compounds, possesses, produces, prepares, sells, transports, tests, or analyzes amphetamine or methamphetamine or any of their analogues.

Endangering the welfare of a child in the first degree is a Class C felony unless the offense is committed as part of a ritual or ceremony, or except on a second or subsequent offense, in which case the crime is a Class B felony.

This section shall be known as ‘Hope’s Law.’

Notwithstanding the physician-patient privilege, any physician or health-care provider may refer to the Department of Health families in which children may have been exposed to alcohol or a controlled substance as defined by law as evidenced by:

  • Medical documentation of signs and symptoms consistent with controlled substances or alcohol exposure in the child at birth
  • Results of a confirmed toxicology test for controlled substances performed at birth on the mother or the child
  • A written assessment made or approved by a physician, health-care provider, or the Division of Family Services that documents the child as being at risk of abuse or neglect

Nothing in this section shall preclude a physician or other mandated reporter from reporting abuse or neglect of a child as required pursuant to the provisions of the reporting laws.

Upon notification, the Department of Health and Senior Services shall offer service coordination services to the family. The department shall coordinate social services, health care, mental health services, and needed education and rehabilitation services. Service coordination services shall be initiated within 72 hours of notification. The Department of Health and Senior Services shall notify the Department of Social Services and the Department of Mental Health within 72 hours of initial notification.

Referral and associated documentation provided for in this section shall be confidential and shall not be used in any criminal prosecution.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In every case involving an abused or neglected child that results in a judicial proceeding, the judge shall appoint a guardian ad litem (GAL) to appear for and represent:

  • A child who is the subject of the proceedings
  • A parent who is a minor or who is a mentally ill person or otherwise incompetent, and whose child is the subject of the proceedings

The appointing judge shall require the GAL to faithfully discharge his or her duties, and should the GAL fail to do so, the court shall discharge the GAL and appoint another.

The judge, in making appointments pursuant to this section, shall give preference to persons who served as GAL for the child in an earlier proceeding, unless there is a reason on the record for not giving such preference.

The Use of Court-Appointed Special Advocates (CASAs)

The court may designate volunteer advocates, who may or may not be attorneys licensed to practice law, to assist in the performance of the GAL duties for the court. Nonattorney volunteer advocates shall not provide legal representation. The court shall have the authority to examine the general and criminal background of persons designated as volunteer advocates, including utilization of the family care safety registry, to ensure the safety and welfare of the children such persons are designated to represent. The volunteer advocate shall be provided with all reports relevant to the case made to or by any agency or person, shall have access to all records of such agencies or persons relating to the child or such child’s family members or placements of the child, and upon designation by the court to a case, shall be informed of and have the right to attend any and all family support team meetings involving the child.

Qualifications/Training

The appointing judge shall have the authority to examine the general and criminal background of persons appointed as GALs, including utilization of the family care safety registry, to ensure the safety and welfare of the children such persons are appointed to represent.

Any person appointed to perform GAL duties shall have completed a training program in permanency planning and shall advocate for timely court hearings whenever possible to attain permanency for a child as expeditiously as possible to reduce the effects that prolonged foster care may have on a child. A nonattorney volunteer advocate shall have access to a court-appointed attorney GAL if the circumstances of the particular case so require.

In court rules: When appointing a GAL for a child, the court shall only appoint a lawyer licensed by the Supreme Court who has completed the training required by court standards.

The court may designate a court-appointed special advocate volunteer to assist in the performance of the GAL duties for the court as provided by law.

Specific Duties

The GAL shall be provided with all reports relevant to the case made to or by any agency or person, shall have access to all records of such agencies or persons relating to the child or the child’s family members or placements of the child, and upon appointment by the court to a case, shall be informed of and have the right to attend any and all family support team meetings involving the child. Employees of the Children’s Division, officers of the court, and employees of any agency involved shall fully inform the GAL of all aspects of the case of which they have knowledge or belief.

The appointing judge shall require the GAL to faithfully discharge his or her duties, and upon failure to do so shall discharge the GAL and appoint another.

In court rules: A GAL shall be guided by the best interests of the child and shall exercise independent judgment on behalf of the child in all matters. The roles of a GAL and a lawyer for the child are different and must be clearly distinguished. A GAL is not the lawyer for the child and, therefore, advocates the best interests of the child rather than merely representing the child’s preferences.

How the Representative Is Compensated

The GAL may be awarded a reasonable fee to be set by the court. The court, in its discretion, may award fees as a judgment to be paid by any party to the proceedings or from public funds. However, no fees as a judgment shall be taxed against a party or parties that have not been found to have abused or neglected a child or children. Such an award of guardian fees shall constitute a final judgment in favor of the GAL.

A volunteer advocate shall receive no compensation from public funds. This shall not preclude reimbursement for reasonable expenses.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Contracts [for services] shall require that a case management plan consistent with all relevant Federal guidelines be developed for each child at the earliest time after the initial investigation, but in no event longer than 14 days after the initial investigation or referral for services by the division. The case management plan shall be presented to the court and be the foundation of service delivery to the child and family.

In regulation: Every child in the care and custody of, or receiving social services from, the Division of Family Service of the Department of Social Services shall have a case plan developed for the purpose of preventing removal of the child from the care of the parents, reuniting a child separated from parents, or securing a permanent placement for a child if it is determined the child cannot be reunited with his or her parents.

Every case plan must be developed within 30 days from the date that it has been determined a child should receive protective services or from the date that a judicial determination has been made that the child should be placed in the care and custody of the division. Thereafter, each case plan shall be reviewed and modified, as necessary, every 6 months. The purpose of the review is to determine the extent of compliance with the case plan and determine what changes, if any, should be made.

Who May Participate in the Case Planning Process

A family support team meeting [will be] convened by the division or children’s services provider on behalf of the family and/or child for the purpose of determining service and treatment needs, determining the need for placement, developing a plan for reunification or other permanency options, determining the appropriate placement of the child, evaluating case progress, and establishing and revising the case plan.

Contents of a Case Plan

The case management plan shall, at a minimum, include:

  • An outcome target based on the child and family situation achieving permanency or independent living, where appropriate
  • Services authorized and necessary to facilitate the outcome target
  • Timeframes in which services will be delivered
  • Necessary evaluations and reporting

In addition to any visits and assessments required under case management, services to be provided by a public or private children’s services provider under the specific case management plan may include family-centered services, foster and adoptive parent recruitment and retention, residential care, in-home services, foster care services, adoption services, relative care case services, planned permanent living services, and family reunification services. In all cases, an appropriate level of services shall be provided to the child and family after permanency is achieved to ensure a continued successful outcome.

In regulation: A case plan is a written document that describes social and child welfare services and activities to be provided by the division and other local community agencies for the purpose of achieving a permanent familial relationship for the child. This case plan shall include, at a minimum, the following information:

  • Identifying information about the child and his or her immediate and extended family
  • A description of the factors and conditions, including the psychological needs of the child, that caused the division to determine that protective or alternative care services were needed or a copy of the judicial determinations made regarding the child’s placement in the custody of the division
  • A description of what efforts were made to prevent removal from the custody of the parents, to reunify the family, or to achieve a permanent placement for the child
  • A statement of the intended plan for permanency for the child, which shall consist of one of the following:
    • Maintain the child with the parents
    • Reunite child with his or her family if a judicial determination has been made for the child to be removed from the custody of the parents and placed in an alternate care facility
    • Place the child for the purpose of adoption
    • For a child age 16 or older, maintain child in a long-term separation from his or her parents with an agreed-upon plan with the care provider
  • A description of how the plan is designed to maintain or reunite the child with his or her parent or achieve a permanent substitute placement for the child including:
    • A description of the social services to be provided and a description of the services needed to carry out any requirements of a judicial determination proceeding or order with a designation of the responsible parties for the provision of any services
    • A description of the responsibilities of the parents
    • A description of parental behaviors that determine that services are no longer necessary or that alternative care is no longer needed
  • A description of the appropriateness and necessity for placement away from the parents if the court has ordered placement, including at a minimum, the following:
    • The least restrictive characteristics of the alternate care placement facility correlated to the condition and best interests of the child
    • The degree of proximity of the alternate care placement facility to the location of the parents’ residence
    • A description of how the needs of the child will be met while in placement
    • A parental visitation schedule including frequency, location, arrangements, and a method of documentation for actual visits
  • An evaluation of case plan achievement by all parties, including a time period for case plan achievement

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A dispositional hearing to review the status of the child shall be held within 6 months.

A permanency hearing shall be held within 12 months of the initial placement and at least annually thereafter.

If the court determines that reasonable efforts to reunify the child with his or her family are not required, a permanency hearing must be held within 30 days after the determination.

Persons Entitled to Attend Hearings

The child and the child’s parent, guardian, or relative may be present at the hearing.

Any person who has provided foster care to a child at any time in a 2-year period prior to any hearing concerning the child shall be allowed to testify at such hearing. The court may limit such testimony to evidence the court finds relevant and material.

Determinations Made at Hearings

The purpose of the dispositional hearing shall be to determine whether or not the child should remain in foster care; whether the child should be returned to a parent, guardian, or relative; or whether or not proceedings should be instituted to terminate parental rights and legally free the child for adoption.

The permanency hearing shall be for the purpose of determining, in accordance with the best interests of the child, a plan for the permanent placement of the child.

At the permanency hearing, the court shall consider all relevant factors including:

  • The interaction and interrelationship of the child with the child’s foster parents, parents, siblings, and any other person who may significantly affect the child’s best interests
  • The child’s adjustment to his or her foster home, school, and community
  • The mental and physical health of all individuals involved, including any history of abuse of any individuals involved
  • The needs of the child for a continuing relationship with the child’s parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child
Permanency Options

Placement options for the child include:

  • Return to the parent, guardian, or relative
  • Termination of parental rights and placement for adoption
  • Continuation in foster care

Determining the Best Interests of the Child

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Current Through March 2016

The Department of Social Services shall address the needs of homeless, dependent, and neglected children in the supervision and custody of the Children’s Division and to their families-in-conflict by:

  • Serving children and families as a unit in the least restrictive setting available and in close proximity to the family home, consistent with the best interests and special needs of the child
  • Ensuring that appropriate social services are provided to the family unit both prior to the removal of the child from the home and after family reunification
  • Developing and implementing preventive and early intervention social services that have demonstrated the ability to delay or reduce the need for out-of-home placements and ameliorate problems before they become chronic

The provisions of this section shall be construed to promote the best interests and welfare of the child as determined by the juvenile court in consideration of the following:

  • The recognition and protection of the constitutional rights of all parties in the proceedings
  • The recognition and protection of the birth family relationship, when possible and appropriate
  • The entitlement of every child to a permanent and stable home

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

A petition to terminate parental rights shall be filed when:

  • The child has been in foster care for at least 15 of the most recent 22 months.
  • A court has determined the child to be an abandoned infant.
  • The parent has:
    • Committed murder or voluntary manslaughter of another child of the parent
    • Aided or abetted, attempted, conspired, or solicited to commit such a murder or voluntary manslaughter
    • Committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent
  • The child has been abandoned.
  • The parent has abused or neglected the child, based on any of the following:
    • A mental condition or chemical dependency that renders the parent unable to care for the child
    • Chemical dependency that prevents the parent from consistently providing the necessary care, custody, and control of the child and that cannot be treated so as to enable the parent to consistently provide such care, custody, and control
    • A severe act or recurrent acts of physical, emotional, or sexual abuse toward the child or any child in the family, including an act of incest
    • Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education
  • The child has been in out-of-home care for 1 year, and the parent has failed to comply with the terms of a case plan designed to reunify the parent with the child.
  • The parent has been found guilty of a sexual offense or incest, and the victim was the child or any child in the family.
  • The child was conceived and born as a result of an act of forcible rape by a biological parent.
  • The parent is unfit because of a consistent pattern of committing a specific abuse, including, but not limited to, domestic abuse, child abuse, or drug abuse before the child.
  • The parent’s parental rights to one or more other children were involuntarily terminated within the immediately preceding 3 years.
Circumstances That Are Exceptions to Termination of Parental Rights

Even when grounds exist for termination of parental rights, the juvenile officer or the Children’s Division is not required to file a petition to terminate the parental rights of the child’s parent or parents if:

  • The child is being cared for by a relative.
  • There exists a compelling reason for determining that filing such a petition would not be in the best interests of the child, as documented in the permanency plan.
  • The family of the child has not been provided the services required for making reasonable efforts to preserve the family.

The disability or disease of a parent shall not constitute a basis for a determination that a child is a child in need of care, for the removal of custody of a child from the parent, or for the termination of parental rights without a specific showing that there is a causal relation between the disability or disease and harm to the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A child who is no more than 1 year old may be relinquished.

Who May Relinquish the Infant

The child may be relinquished by his or her biological parent.

Who May Receive the Infant

The child may be released to the physical custody of any of the following persons:

  • An employee, agent, or member of the staff of any hospital, in a health-care provider position, or on duty in a nonmedical paid or volunteer position
  • A firefighter or emergency medical technician on duty in a paid position or on duty in a volunteer position
  • A law enforcement officer
Responsibilities of the Safe Haven Provider

A safe haven provider shall, without a court order, take physical custody of a child the person reasonably believes to be no more than age 1 and is delivered in accordance with this section by a person purporting to be the child’s parent. If delivery of a newborn is made in any place other than a hospital, the person taking physical custody of the child shall arrange for the immediate transportation of the child to the nearest hospital.

The hospital shall perform treatment in accordance with the prevailing standard of care as necessary to protect the physical health or safety of the child.

The hospital shall notify the Division of Family Services and the local juvenile officer upon receipt of a child. The local juvenile officer shall immediately begin protective custody proceedings and request the child be made a ward of the court during the child’s stay in the medical facility. Upon discharge of the child from the medical facility and pursuant to a protective custody order ordering custody of the child to the division, the Division of Family Services shall take physical custody of the child.

When a nonrelinquishing parent inquires at a hospital regarding the child, such facility shall refer the nonrelinquishing parent to the Division of Family Services and the juvenile court exercising jurisdiction over the child.

Immunity for the Provider

A safe haven provider shall be immune from civil, criminal, and administrative liability for accepting physical custody of a child pursuant to this section if such persons accept custody in good faith. Such immunity shall not extend to any acts or omissions, including negligent or intentional acts or omissions, occurring after the acceptance of such child.

Protection for Relinquishing Parent

A parent shall not be prosecuted for child abandonment or endangering the welfare of a child for actions related to the voluntary relinquishment of a child up to 5 days old. It shall be an affirmative defense to prosecution for child abandonment or endangering the welfare of a child that a parent who is a defendant voluntarily relinquished a child no more than age 1 if:

  • Expressing intent not to return for the child, the parent voluntarily delivered the child safely to the physical custody of any safe haven provider.
  • The child was no more than age 1 when delivered by the parent to a safe haven provider.
  • The child had not been abused or neglected by the parent prior to such voluntary delivery.
Effect on Parental Rights

The parent’s voluntary delivery of the child in accordance with this section shall constitute the parent’s implied consent to any such act and a voluntary relinquishment of such parent’s parental rights.

In any termination of parental rights proceeding initiated after the relinquishment of a child, the juvenile officer shall make public notice that a child has been relinquished, including the sex of the child, and the date and location of such relinquishment. Within 30 days of such public notice, the nonrelinquishing parent wishing to establish parental rights shall identify him or herself to the court and state his or her intentions regarding the child.

The court shall initiate proceedings to establish paternity, or if no person identifies himself as the father within 30 days, maternity. The juvenile officer shall make examination of the putative father registry to determine whether attempts have previously been made to preserve parental rights to the child. If such attempts have been made, the juvenile officer shall make reasonable efforts to provide notice of the abandonment of the child to such putative father.

If a parent of a child has relinquished custody of the child to a safe haven provider, the nonrelinquishing parent shall take such steps necessary to establish parentage within 30 days after notice has been provided. If a nonrelinquishing parent fails to establish parentage within the 30-day period, the nonrelinquishing parent may have all of his or her rights terminated with respect to the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘close nonrelated person’ means any nonrelated person whose life is so intermingled with the child that the relationship is similar to a family relationship. The term ‘relative’ means any grandparent, aunt, uncle, adult sibling, adult first cousin of the child, or any other person related to the child by blood or affinity.

The term ‘legal custody’ means the right to the care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education, treatment, and discipline of a child. Legal custody may be taken from a parent only by court action and if the legal custody is taken from a parent without termination of parental rights, the parent’s duty to provide support continues even though the person having legal custody may provide the necessities of daily living.

In regulation: The term ‘relative’ means a person related to another by blood, adoption, or affinity within the third degree (grandparent, brother, sister, half-brother, half-sister, stepparent, stepbrother, stepsister, uncle, aunt, or first cousin).

The term ‘kinship’ applies to a person not related by blood, marriage, or adoption who has a close relationship with the child or child’s family (godparents, neighbors, teachers, close family friends, and fellow church members) or a person who has a close relationship with the child or child’s family and is related to the child by blood or affinity beyond the third degree.

Purpose of Guardianship

Guardianship is a permanency option for children in out-of-home care when neither family reunification nor adoption is feasible or desirable, and the caregiver family is willing to assume a greater level of responsibility and authority over the child.

A Guardian’s Rights and Responsibilities

The guardian becomes legally responsible and obligated to take care of the child. The guardian must make all necessary decisions regarding the child’s affairs, including medical care, education, and finances. Also, the guardian is under a duty to provide the child with necessary food, clothing, and shelter. The guardian is directly supervised by and answerable to the court that granted the petitioner’s request for guardianship.

Qualifying the Guardian

A prospective guardian shall not be approved if he or she:

  • Has a felony conviction for child abuse or neglect, spousal abuse, a crime against children (including child pornography), or a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery
  • Has had a felony conviction for physical assault, battery, or a drug-related offense in the past 5 years

In policy: The Department of Social Services will pursue guardianship when:

  • Family reunification is not likely in the foreseeable future and termination of parental rights is deemed inappropriate.
  • Adoption is not an option.
  • The current caregiver is able to meet the needs of the child, including financial, and is willing to pursue guardianship.
  • The current placement is stable.
  • The child’s parent(s) will consent to guardianship.
  • The child, if over age 14, consents.
  • The juvenile court having jurisdiction supports guardianship as an option and is willing to terminate its jurisdiction when guardianship is granted.

The caregiver family must comply with all licensing requirements, including training, background checks, and the home study process.

Procedures for Establishing Guardianship

If, after the dispositional hearing, the court finds that one or more of the grounds set out for termination of parental rights exists, but that termination is not in the best interests of the child because the court finds that the child would benefit from the continued parent-child relationship or because the child who is age 14 or older objects to the termination, the court may appoint a guardian under the provisions of chapter 475.

In policy: Persons interested in serving as a child’s guardian must file a petition in probate court in accordance with chapter 475. If the court makes a determination that the child is a minor incapable of caring for him- or herself and unable to manage his or her affairs, a guardian is appointed.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

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

Eligibility for Guardianship Subsidy

Any subsidies available to adoptive parents also shall be available to a qualified relative of a child or a qualified close nonrelated person who is granted legal guardianship of the child.

In regulation: In order for a child to qualify for a guardianship subsidy, the child shall meet the following criteria:

  • The child must be under age 18 at the time of placement.
  • The child must be in the custody of the department or a child-placing agency.
  • The child cannot or should not be returned to the home of his or her parents.
  • The child must be a ‘child with special needs,’ as defined below, that precludes placement with a guardian without providing subsidy.

To be eligible for a subsidy, a child shall meet one or more of the following conditions:

  • Any physical condition, whether congenital or not, that requires treatment or the purchase of special equipment or services
  • Intellectual impairment or dysfunction
  • Racial or ethnic minority
  • Be age 5 or older and younger than 18, or younger than 21 if the child’s condition requires extraordinary treatment or rehabilitative services
  • Two or more children who are siblings and being placed with the same family
  • A developmental disability that prevents the child from functioning at the normal level for his or her age
  • A mental or emotional disturbance that impairs the child’s mental functioning
  • A severe behavioral condition or inadequate social development that interferes with the child’s ability to form satisfactory relationships
  • A history of circumstances such as long-term out-of-home care, incest, or a social or genetic complication in the family background, that can impede an adoption

In order for a guardian to be eligible for subsidy, he or she shall be a grandparent or great-grandparent, aunt or great-aunt, uncle or great-uncle, adult sibling, or adult first cousin of the child who has been approved as a guardianship placement.

Links to Agency Policies

Missouri Department of Social Services, Child Welfare Manual, see Section 4, Chapter 22

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

Whenever a child is placed in a foster home and the court has determined that foster home placement with relatives is not contrary to the best interests of the child, the Children’s Division shall give foster home placement to relatives of the child. The division shall make diligent efforts to locate the grandparents of the child and determine whether they wish to be considered for placement of the child. Grandparents who request consideration shall be given preference and first consideration for foster home placement of the child. If more than one grandparent requests consideration, the family support team shall make recommendations to the juvenile or family court about which grandparent should be considered for placement.

The term ‘relative’ means a grandparent or any other person related to another by blood or affinity within the third degree. The status of a grandparent shall not be affected by the death or the dissolution of the marriage of a son or daughter.

The following shall be the order of preference for placement of a child under this section:

  • Grandparents and relatives
  • A trusted adult that has a preexisting relationship with the child, such as a godparent, teacher, neighbor, or fellow parishioner who voluntarily agrees to care for the child
  • Any foster parent who is currently licensed and capable of accepting placement of the child

For any Native American child placed in protective custody, the children’s division shall comply with the placement requirements set forth in 25 U.S.C. § 1915.

Requirements for Placement with Relatives

The preference for placement and first consideration for grandparents or preference for placement with other relatives only shall apply when the court finds the placement is not contrary to the best interests of the child, considering all circumstances. If the court finds that it is contrary to the best interests of a child to be placed with grandparents or other relatives, the court shall make specific findings detailing the reasons why the best interests of the child necessitate placement of the child with persons other than grandparents or other relatives.

The age of the child’s grandparent or other relative shall not be the only factor that the division takes into consideration when it makes placement decisions.

A grandparent or other relative may, on a case-by-case basis, have standards for licensure not related to safety waived that would otherwise impede licensing of the grandparent’s or relative’s home. In addition, any person receiving a preference may be licensed in an expedited manner if a child is placed under such person’s care.

The guardian ad litem shall ascertain the child’s wishes and feelings about his or her placement by conducting an interview with the child, based on the child’s age and maturity level, that shall be considered as a factor in placement decisions but shall not supersede the preference for relative placement or be contrary to the child’s best interests.

Requirements for Placement of Siblings

Recognizing the critical nature of sibling bonds for children, the division shall make reasonable efforts to place siblings in the same foster care, kinship, guardianship, or adoptive placement, unless doing so would be contrary to the safety or well-being of any of the siblings. If siblings are not placed together, the division shall make reasonable efforts to provide frequent visits or other ongoing interaction between the siblings, unless this interaction would be contrary to a siblings’ safety or well-being.

Relatives Who May Adopt

As used in this section, the term:

  • ‘Relative’ means any grandparent, aunt, uncle, adult sibling of the child, adult first cousin of the child, or any other person related to the child by blood or affinity.
  • ‘Close nonrelated person’ means any nonrelated person whose life is so intermingled with the child that the relationship is similar to a family relationship.

Any adult person or persons over age 18, who, as foster parent or parents, have cared for a foster child continuously for a period of 9 months or more and bonding has occurred as evidenced by the positive emotional and physical interaction between the foster parent and child, may apply to an authorized agency for the placement of the child with them for the purpose of adoption if the child is eligible for adoption. The agency and court shall give preference and first consideration for adoptive placements to foster parents. However, the final determination of the propriety of the adoption of that foster child shall be within the sole discretion of the court.

Requirements for Adoption by Relatives

Any subsidies available to adoptive parents shall also be available to the qualified relative of a child who is granted legal guardianship of the child in the same manner as such subsidies are available for adoptive parents.

In cases in which the adoption or custody involves a child under age 18 who is the natural child of one of the petitioners and all of the parents required to give consent to the adoption or transfer of custody have given such consent, the juvenile court may waive the investigation and report, except the criminal background check, and enter the decree for the adoption or order the transfer of custody without the investigation and report.

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of reasonable diligence and care by the Children’s Division to utilize all available services related to meeting the needs of the juvenile and the family.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent or eliminate the need for the removal of the child
  • After removal, to make it possible for the child to return home
When Reasonable Efforts Are NOT Required

The division shall not be required to make reasonable efforts, but it has the discretion to make reasonable efforts if the court has determined that:

  • The parent has subjected the child to severe or recurrent acts of physical, emotional, or sexual abuse, including an act of incest.
  • The parent has committed murder or voluntary manslaughter of another child of the parent, or aided, abetted, or attempted such act.
  • The parent has committed a felony assault that resulted in serious bodily injury to the child or to another child of the parent.
  • The parent’s parental rights to a sibling have been terminated involuntarily.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A custodial parent may designate a person to act as standby guardian of a minor.

The laws applicable to guardianship proceedings shall apply to all proceedings under this section, except to the extent determined by the court to be inconsistent with the provisions of this section or as expressly provided in this section.

How to Establish a Standby Guardian

The designation of a standby guardian may be made in a will that complies with the requirements of § 474.320 or by a separate written instrument that is dated and is either duly executed and acknowledged by the custodial parent or is signed by the custodial parent in the presence of at least two disinterested witnesses. If the custodial parent executes more than one document designating a standby guardian and there is a conflict between the documents as to the person designated, the document bearing the latest date shall control.

If a custodial parent who has designated a standby guardian is or becomes seriously ill, either the custodial parent or the person designated as standby guardian may file a petition in the probate division of the circuit court of the county that would be of proper venue for the appointment of a guardian for the child. A copy of the will or written instrument designating the standby guardian and a consent to act as standby guardian signed by the designated person shall be filed with the petition. The petition shall state:

  • The name, age, domicile, actual place of residence, and mailing address of the minor
  • The name and address of the custodial parent and the designated standby guardian
  • The name and address of each parent of the minor and whether that parent is living or dead
  • The name and address of the spouse, if applicable, and the names, ages, and addresses of all living children of the minor
  • If the person for whom appointment of a standby guardian is sought has been adjudicated incapacitated, the date of adjudication and the name and address of the court that entered the judgment
  • The reasons why the appointment of a standby guardian is sought
How Standby Authority is Activated

The court shall determine appointment of a standby guardian in accordance with the best interests of the minor after considering all relevant factors, including:

  • Whether there is a parent other than the custodial parent and, if so, whether the other parent is willing, able, and fit to assume the duties of a parent
  • The suitability of a person nominated by the minor, if he or she is able to communicate a reasonable choice
  • The desirability of providing arrangements for the care, custody, and control of the minor that shall minimize stress and disruption and avoid his or her placement in foster or similar care pending appointment of a guardian if the custodial parent is adjudicated incapacitated or dies

The authority of a person to act as standby guardian for a minor shall take effect only as follows:

  • If the person has previously been appointed by the court as standby guardian, upon the granting of letters of standby guardianship to that person
  • If the person has not previously been appointed as standby guardian, either because a petition for appointment has not been filed or because the proceedings are still pending, upon the first to occur of the following:
    • The duly executed consent of the custodial parent
    • Entry of an order adjudicating the custodial parent to be incapacitated
    • The death of the custodial parent

The person shall, within 10 days after he or she begins to act as standby guardian, notify the court in writing of that fact. The court may grant letters of standby guardianship to the person or, if the court deems it advisable, conduct a hearing to determine the propriety of the person having begun, and continuing, to act as standby guardian and the propriety of issuing letters of standby guardianship to the person.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

Nothing in this section shall be construed to:

  • Deprive a parent of his or her legal rights with respect to a child of that parent, including court-ordered visitation with the child, nor to authorize a grant of authority to a standby guardian that would supersede any such rights
  • Relieve a parent of his or her legal obligations or duties to a child of that parent, including a duty to support the child in accordance with a court or administrative order
Withdrawing Guardianship

The authority of a guardian terminates:

  • When a minor ward becomes age 18
  • Upon an adjudication that an incapacitated or disabled person has been restored to his or her capacity or ability
  • Upon revocation of the letters of the guardian
  • Upon the acceptance by the court of the resignation of the guardian
  • Upon the death of the ward
  • Upon an order of court terminating the guardianship

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

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US Supreme Court

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

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

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

CPS Statutes

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

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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.”)

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10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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US Supreme Court

CPS Statutes

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

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

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

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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CPS Statutes

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

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

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

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

 

 

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

9th Circuit

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US Supreme Court

CPS Statutes

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

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

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3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

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3rd Circuit

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

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9th Circuit

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

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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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