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

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

Montana

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: If the offense [of assault of a partner or family member] was committed within the vision or hearing of a minor, the judge shall consider the minor’s presence as a factor at the time of sentencing.

Consequences

If the offense [of assault of a partner or family member] was committed within the vision or hearing of a minor, the judge shall consider the minor’s presence as a factor at the time of sentencing.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Physical abuse’ means an intentional act, omission, or gross negligence resulting in substantial skin bruising, internal bleeding, substantial injury to skin, subdural hematoma, burns, bone fractures, extreme pain, permanent or temporary disfigurement, impairment of any bodily organ or function, or death.

‘Child abuse or neglect’ means:

  • Actual physical or psychological harm to a child
  • Substantial risk of physical or psychological harm to a child
  • Abandonment

The term includes:

  • Actual physical or psychological harm to a child, or substantial risk of physical or psychological harm to a child, by the acts or omissions of a person responsible for the child’s welfare
  • Exposing a child to the criminal distribution of dangerous drugs, the criminal production or manufacture of dangerous drugs, or the operation of an unlawful clandestine laboratory

‘Physical or psychological harm to a child’ means the harm that occurs whenever the parent or other person responsible for the child’s welfare inflicts or allows to be inflicted upon the child physical abuse, physical neglect, or psychological abuse or neglect.

Neglect

‘Physical neglect’ means:

  • Failure to provide basic necessities, including but not limited to appropriate and adequate nutrition, protective shelter from the elements, and appropriate clothing related to weather conditions
  • Failure to provide cleanliness and general supervision
  • Exposing or allowing the child to be exposed to an unreasonable physical or psychological risk to the child

‘Physical or psychological harm to a child’ means the harm that occurs whenever the parent or other person responsible for the child’s welfare:

  • Causes malnutrition, failure to thrive, or otherwise fails to supply the child with adequate food; fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or when offered financial or other reasonable means to do so
  • Exposes the child, or allows the child to be exposed, to an unreasonable risk to the child’s health or welfare by failing to intervene or eliminate the risk

‘Withholding of medically indicated treatment’ means failure to respond to an infant’s life-threatening conditions by not providing treatment, including appropriate nutrition, hydration, and medication, that in the treating physician’s or physicians’ reasonable medical judgment is most likely to be effective in ameliorating or correcting the conditions.

Sexual Abuse/Exploitation

‘Sexual abuse’ means the commission of sexual assault, sexual intercourse without consent, indecent exposure, deviate sexual conduct, ritual abuse, or incest.

‘Sexual exploitation’ means allowing, permitting, or encouraging a child to engage in a prostitution offense or allowing, permitting, or encouraging sexual abuse of children.

‘Physical or psychological harm to a child’ means the harm that occurs whenever a parent or other person responsible for the child’s welfare commits or allows sexual abuse or exploitation of the child.

Emotional Abuse

‘Psychological abuse or neglect’ means severe maltreatment through acts or omissions that are injurious to the child’s emotional, intellectual, or psychological capacity to function, including acts of violence against another person residing in the child’s home.

‘Physical or psychological harm to a child’ means the harm that occurs whenever a parent or other person responsible for a child’s welfare induces or attempts to induce the child to give untrue testimony that the child or another child was abused or neglected by a parent or other person responsible for the child’s welfare.

Abandonment

Citation: Ann. Code § 41-3-102
‘Abandon,’ ‘abandoned,’ and ‘abandonment’ mean:

  • Leaving a child under circumstances that make reasonable the belief that the parent does not intend to resume care of the child in the future
  • Willfully surrendering physical custody for a period of 6 months and during that period not manifesting to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child
  • That the parent is unknown and has been unknown for a period of 90 days and that reasonable efforts to identify and locate the parent have failed
  • The voluntary surrender, as defined in § 40-6-402, by a parent of a newborn who is no more than 30 days old, to an emergency services provider

‘Physical or psychological harm to a child’ means the harm that occurs when the parent or other person responsible for the child’s welfare abandons the child.

Standards for Reporting

Citation: Ann. Code § 41-3-201
A report is required when a mandatory reporter knows or has reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected by anyone regardless of whether the person suspected of causing the abuse or neglect is a parent or other person responsible for the child’s welfare.

Persons Responsible for the Child

‘A person responsible for a child’s welfare’ means:

  • The child’s parent, guardian, foster parent, or an adult who resides in the same home as the child
  • A person providing care in a daycare facility
  • An employee of a public or private residential institution, facility, home, or agency
  • Any other person responsible for the child’s welfare in a residential setting
Exceptions

The term ‘abandoned’ does not include the voluntary surrender of the child to the department solely because of parental inability to access publicly funded services.

The term ‘child abuse’ does not include self-defense, defense of others, or action taken to prevent the child from self-harm.

This chapter may not be construed to require or justify a finding of child abuse or neglect for the sole reason that a parent or legal guardian, because of religious beliefs, does not provide adequate health care for a child. This chapter may not be construed to limit the administrative or judicial authority of the State to ensure that medical care is provided to the child when there is imminent substantial risk of serious harm to the child.

The term ‘withholding medically indicated treatment’ does not include the failure to provide treatment, other than appropriate nutrition, hydration, or medication to an infant when, in the treating physician’s or physicians’ reasonable medical judgment:

  • The infant is chronically and irreversibly comatose.
  • The provision of treatment would merely prolong dying, not be effective in ameliorating or correcting all of the infant’s life-threatening conditions, or otherwise be futile in terms of the survival of the infant.
  • The provision of treatment would be virtually futile in terms of the survival of the infant, and the treatment itself under the circumstances would be inhumane.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

A person may file a petition for an order of protection if:

  • The petitioner is in reasonable apprehension of bodily injury by the petitioner’s partner or family member, as defined in § 45-5-206.
  • The petitioner is a victim of one of the offenses listed below committed by a partner or family member:
    • Assault or aggravated assault
    • Intimidation
    • Partner or family member assault
    • Criminal or negligent endangerment
    • Assault on a minor
    • Assault with a weapon
    • Unlawful restraint
    • Kidnapping or aggravated kidnapping
    • Arson
Defined in Child Abuse Reporting and Child Protection Laws

‘Psychological abuse or neglect’ means severe maltreatment through acts or omissions that are injurious to the child’s emotional, intellectual, or psychological capacity to function, including the commission of acts of violence against another person residing in the child’s home.

The term may not be construed to hold a victim responsible for failing to prevent the crime against the victim.

Defined in Criminal Laws

A person commits the offense of ‘partner or family member assault’ when the person:

  • Purposely or knowingly causes bodily injury to a partner or family member
  • Negligently causes bodily injury to a partner or family member with a weapon
  • Purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member
Persons Included in the Definition

‘Family member’ means mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.

‘Partners’ means spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone investigating or reporting any incident of child abuse or neglect, participating in resulting judicial proceedings, or furnishing hospital or medical records pursuant to the reporting laws, is immune from any civil or criminal liability that might otherwise be incurred or imposed, unless the person was grossly negligent, acted in bad faith or with malicious purpose, or provided information knowing the information to be false.

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 knows or has reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected, he or she shall promptly make a report to the Department of Public Health and Human Services.

Content of Reports

The report must contain:

  • The names and addresses of the child and the child’s parents or other persons responsible for the child’s care
  • To the extent known, the nature and extent of the child’s injuries, including any evidence of prior injuries
  • Any other information that the reporter believes might be helpful in establishing the cause of the injuries or showing the willful neglect and the identity of the person or persons responsible for the injury or neglect
  • The facts that led the reporter to believe that the child suffered injury or willful neglect
Reporting Suspicious Deaths

A mandated reporter who has reasonable cause to suspect that a child has died as a result of abuse or neglect shall report that suspicion to the appropriate medical examiner or law enforcement officer.

Reporting Substance-Exposed Infants

A physician or other health-care professional involved in the delivery or care of an infant shall report to the department any infant known to the professional to be affected by a dangerous drug, as defined in § 50-32-101.

Agency Receiving the Reports

All reports of child abuse or neglect must be made through the child abuse hotline.

Initial Screening Decisions

Upon receipt of a report that a child is or has been abused or neglected, the department shall promptly assess the information contained in the report and make a determination regarding the level of response required and the timeframe within which action must be initiated.

In regulation: When the child abuse hotline receives an incoming communication, the intake specialist will use standardized questions to screen the communication and determine:

  • The type of child abuse or neglect alleged
  • The level of response required
  • How the report will be classified

When the incoming communication received by the hotline contains an allegation of child abuse or neglect requiring investigation, the intake specialist shall transmit the report to a local office for a response pursuant to § 41-3-202.

When an incoming communication received by the hotline results in a report alleging child abuse or neglect that indicates a child may be in immediate danger of serious harm, thus requiring an immediate response, the intake specialist will promptly contact the appropriate social worker in the field designated to receive those reports and verbally inform the field social worker of:

  • The nature of the concerns
  • Where the child or children of concern can be located
  • Any other information necessary to facilitate protection of the child or children
Agency Conducting the Assessment/Investigation

If the department determines that an investigation is required, a social worker, the county attorney, or a peace officer shall promptly conduct a thorough investigation into the circumstances surrounding the allegations of abuse or neglect of the child.

Assessment/Investigation Procedures

An initial investigation of alleged abuse or neglect may be conducted when an anonymous report is received. However, the investigation must within 48 hours result in the development of independent, corroborative, and attributable information in order for the investigation to continue. Without the development of independent, corroborative, and attributable information, a child may not be removed from the home.

The social worker is responsible for assessing the family and planning for the child. If the child is treated at a medical facility, the social worker, county attorney, or peace officer, consistent with reasonable medical practice, has the right of access to the child for interviews, photographs, and securing of physical evidence and has the right of access to relevant hospital and medical records pertaining to the child. If an interview of the child is considered necessary, the social worker, county attorney, or peace officer may conduct an interview of the child. The interview may be conducted in the presence of the parent or guardian or an employee of the school or daycare facility attended by the child.

Timeframes for Completing Investigations

The investigating social worker shall furnish a written report to the department within 60 days of commencing an investigation.

Classification of Reports

From the results of the investigation, the department shall determine whether the report is substantiated, unfounded, or unsubstantiated.

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Child abuse or neglect’ includes exposing a child to the criminal distribution of dangerous drugs, as prohibited by § 45-9-101, the criminal production or manufacture of dangerous drugs, as prohibited by § 45-9-110, or the operation of an unlawful clandestine laboratory, as prohibited by § 45-9-132.

A physician or other health-care professional involved in the delivery or care of an infant shall report to the department any infant known to the professional to be affected by a dangerous drug, as defined in § 50-32-101.

A person, whether or not the person is supervising the welfare of a child younger than age 18, commits the offense of endangering the welfare of children if the person, in the residence of a child, in a building, structure, conveyance, or outdoor location where a child might reasonably be expected to be present, in a room offered to the public for overnight accommodation, or in any multiple-unit residential building, knowingly:

  • Produces or manufactures methamphetamine or attempts to produce or manufacture methamphetamine
  • Possesses any material, compound, mixture, or preparation that contains any combination of the items listed in § 45-9-107 with intent to manufacture methamphetamine
  • Causes or permits a child to inhale, be exposed to, have contact with, or ingest methamphetamine or be exposed to or have contact with methamphetamine paraphernalia

A person convicted under the subsection above is guilty of a felony and shall be imprisoned in the State prison for a term not to exceed 5 years and may be fined an amount not to exceed $10,000, or both. If a child suffers serious bodily injury, the offender shall be fined an amount not to exceed $25,000 or be imprisoned for a term not to exceed 10 years, or both. Prosecution or conviction of a violation of this subsection does not bar prosecution or conviction for any other crime committed by the offender as part of the same conduct.

A person convicted of operation of an unlawful clandestine laboratory shall be fined an amount not to exceed $50,000, be imprisoned in a State prison for a term not to exceed 50 years, or both, if the operation of an unlawful clandestine laboratory or any phase of the operation:

  • Created a substantial risk of death of or serious bodily injury to another
  • Took place within 500 feet of a residence, business, church, or school
  • Took place in the presence of a person younger than age 18

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In every judicial proceeding, the court shall appoint a guardian ad litem (GAL) for any child alleged to be abused or neglected.

Any party involved in a petition filed pursuant to § 41-3-422 has the right to counsel in all proceedings held pursuant to the petition.

Except as provided below, the court shall immediately appoint the Office of State Public Defender to assign counsel for:

  • Any indigent parent, guardian, or other person having legal custody of a child or youth in a removal, placement, or termination proceeding pursuant to § 41-3-422, pending a determination of eligibility pursuant to § 47-1-111
  • Any child or youth involved in a proceeding under a petition filed pursuant to § 41-3-422 when a GAL is not appointed for the child or youth
  • Any party entitled to counsel at public expense under the Federal Indian Child Welfare Act

When appropriate, the court may appoint the Office of State Public defender to assign counsel for any child or youth involved in a proceeding under a petition filed pursuant to § 41-3-422 when a GAL is appointed for the child or youth.

When appropriate and in accordance with judicial branch policy, the court may assign counsel at the court’s expense for a GAL or a court-appointed special advocate (CASA) involved in a proceeding under a petition filed pursuant to § 41-3-422.

The Use of Court-Appointed Special Advocates (CASAs)

Upon its own motion or upon the request of the Department of Public Health and Human Services, the citizen review board, or any interested party, the district court may appoint an attorney or other person as special advocate to represent or appear on behalf of the child. Subject to the direction of the district court, the CASA shall:

  • Investigate all relevant information about the case
  • Advocate for the child, ensuring that all relevant facts are brought before the court
  • Facilitate and negotiate to ensure that the district court, the department, and the child’s attorney fulfill their obligations to the child in a timely fashion
  • Monitor all district court orders to ensure compliance and to bring to the district court’s attention any change in circumstance that may require modification of the district court’s order
Qualifications/Training

The Department of Public Health and Human Services or any member of its staff who has a direct conflict of interest may not be appointed as the GAL in a judicial proceeding under this title.

The GAL must have received appropriate training that is specifically related to serving as a child’s court-appointed representative.

Any party may petition the court for the removal and replacement of the GAL if the GAL fails to perform the duties of the appointment.

Specific Duties

The GAL is charged with the representation of the child’s best interests and shall perform the following general duties:

  • To conduct investigations to ascertain the facts constituting the alleged abuse or neglect
  • To interview or observe the child who is the subject of the proceeding
  • To have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child’s siblings and parents or custodians
  • To make written reports to the court concerning the child’s welfare
  • To appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child’s welfare
  • To perform other duties as directed by the court
  • If the GAL is an attorney, to file motions, including, but not limited to, filing to expedite proceedings or otherwise assert the child’s rights

Information contained in a report filed by the GAL or testimony regarding a report filed by the GAL is not hearsay when it is used to form the basis of the GAL’s opinion as to the best interests of the child.

How the Representative Is Compensated

When necessary, the GAL may serve at public expense.

A State-funded district court program under the judicial branch shall fund all district court costs. These costs include expenses associated with appointment of a GAL or child advocate for the youth.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A case plan must be completed within 30 days for a child placed under a voluntary placement agreement and within 60 days for a child placed under a court order.

The plan must be updated or a new plan developed when a child moves to a new placement setting. The case plan also must be updated whenever a change in the permanent plan for the child occurs. At a minimum, the case plan must be updated at least every 6 months.

Who May Participate in the Case Planning Process

The case plan must:

  • Be developed jointly with the parents or guardian of the child
  • Offer parents or guardians the opportunity to participate in the development of the case plan

If the parents or guardians are unwilling or unable to participate in the development of the case plan, the reason for the lack of participation must be noted in the plan.

Contents of a Case Plan

The case plan must:

  • Describe the placement setting of the child and the plan for ensuring that the child receives safe and appropriate care in that setting
  • Demonstrate that the child’s placement is the least restrictive, most familylike setting available and in close proximity to the home of the parents when the case plan goal is reunification
  • Demonstrate that the placement is in the best interests of the child and that the special needs of the child are being met
  • Describe the services offered and provided to prevent removal of the child from his or her home, the services offered and provided to improve the conditions in the parents’ home and facilitate the safe return home of the child, or the permanent placement of the child
  • Describe the services that are being provided to the child and his or her foster parents and why these services are appropriate to address the needs of the child while in foster care
  • Include, when reunification is not possible, documentation of the steps that are being taken to find an adoptive family, a fit and willing relative, a legal guardian, or another planned permanent living arrangement, and to finalize the adoption or establish legal guardianship
  • Include the most recent health and education records of the child, including:
    • The names and addresses of the child’s health providers
    • The child’s educational status, including:
      • The services already provided and to be provided to the child or out-of-home caregiver to address the child’s educational needs
      • Assurances that each placement of the child in foster care takes into account the appropriateness of the current educational setting, the proximity to the school in which the child is enrolled at the time of placement, and an assurance that the division has coordinated with the appropriate school officials to ensure that the child remains in the same educational setting
      • If remaining in the current educational setting is not in the child’s best interests, document the reasons why moving the child out of the current school district is in his or her best interests and assurances that the division and the local school officials will provide immediate and appropriate enrollment in a new school, with all of the educational records of the child provided to the school
    • A record of the child’s immunizations, known medical problems, and medications
    • Any other relevant health and education information concerning the child determined to be appropriate by the State agency
  • For a youth age 16 or older, include:
    • A written transitional living plan that describes the programs and services that will help the youth prepare for the transition from foster care to independent living
    • A copy of any consumer credit report on the youth for each year until discharged from foster care, and assistance in interpreting the credit report and resolving any inaccuracies
  • In the 90 days immediately prior to youth’s 18th birthday, describe efforts made to:
    • Offer the youth assistance and support in development and implementation of a personalized transitional plan, including options such as housing, health insurance, education, mentors, support services, workforce supports, and employment
    • Offer the youth information about the importance of designating another individual to make health-care treatment decisions for him or her if he or she becomes unable to participate in such decisions and he or she does not have, or does not want, a relative who would otherwise be authorized under State law to make such decisions
    • Provide the youth with the option of designing and executing a health-care power-of-attorney, proxy, or similar document

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

When a child is in foster care under the supervision of the Department of Public Health and Human Services, the foster care review committee shall conduct a review of the foster care status of the child. The review must be conducted within the time limit established under the Adoption and Safe Families Act of 1997 (42 U.S.C. 675(5)).

A permanency hearing must be held by the court, the foster care review committee, or the citizen review board:

  • Within 30 days of a determination that reasonable efforts to provide preservation or reunification services are not necessary
  • No later than 12 months after the initial court finding that the child has been subjected to abuse or neglect or 12 months after the child’s first 60 days of removal from the home, whichever comes first

Within 12 months of the initial permanency hearing, and every 12 months thereafter until the child is permanently placed in either an adoptive or a guardianship placement, the court or the court-approved entity holding the permanency hearing shall conduct a hearing, and the court shall issue a finding as to whether the department has made reasonable efforts to finalize the permanency plan for the child.

Persons Entitled to Attend Hearings

Reasonable notice of each review must be sent to the following:

  • The parents of the child or their attorneys
  • If applicable, the foster parents, a relative caring for the child, the preadoptive parents, or the surrogate parents
  • The child who is the subject of the review if he or she is age 12 or older
  • The child’s attorney, if any
  • The child’s guardian ad litem
  • The court-appointed attorney or special advocate of the child
  • A representative of the child’s Indian Tribe if the child is an Indian
Determinations Made at Hearings

The foster care review committee shall hear the case of each child in foster care to review issues that are germane to the goals of permanency and to accessing appropriate services for parents and children. In evaluating the accessibility, availability, and appropriateness of services, the committee shall consider:

  • The safety, history, and specific needs of the child
  • Whether an involved agency has selected services specifically relevant to the problems and needs of the child and family
  • Whether appropriate services have been available to the child and family on a timely basis
  • The results of intervention
  • If the child is placed in foster care in another State, whether the placement is appropriate and in the best interests of the child

The permanency hearing may be combined with other required review hearings. If an entity other than the court conducts the hearing, the entity shall keep minutes of the hearing and the minutes and written recommendations must be provided to the court within 20 days of the hearing. If the court concurs with the recommendations, the court may adopt the recommendations as findings with no additional hearing required. In this case, the court shall issue written findings within 10 days of receipt of the written recommendations.

The court shall approve a specific permanency plan for the child and make written findings on:

  • Whether the permanency plan is in the best interests of the child
  • Whether the department has made reasonable efforts to finalize the plan
  • Other necessary steps that the department is required to take to effect the terms of the plan
Permanency Options

Permanency options include:

  • Reunification with the child’s parent or guardian
  • Adoption
  • Appointment of a guardian
  • Long-term custody if the child is in a planned permanent living arrangement, and:
    • The child is being cared for by a fit and willing relative.
    • The child has an emotional or mental handicap that is so severe that the child cannot function in a family setting and the best interests of the child are served by placement in a residential or group setting.
    • The child is at least age 16 and is participating in an Independent Living program.
    • The child’s parent is incarcerated, and circumstances indicate that it would not be in the best interests of the child to terminate parental rights of that parent.
    • There is a judicial finding that other more permanent placement options for the child have been considered and found to be inappropriate or to be not in the best interests of the child.
    • The child has been in a placement in which the foster parent or relative has committed to the long-term care of and a relationship with the child, and it is in the best interests of the child to remain in that placement.

Determining the Best Interests of the Child

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

Current Through March 2016

It is the policy of the State of Montana to:

  • Provide for the protection of children whose health and welfare are or may be adversely affected and further threatened by the conduct of those responsible for their care and protection
  • Achieve these purposes in a family environment and preserve the unity and welfare of the family, whenever possible
  • Ensure that there is no forced removal of a child from the family based solely on an allegation of abuse or neglect unless the department has reasonable cause to suspect that the child is at imminent risk of harm
  • Recognize that a child is entitled to assert the child’s constitutional rights
  • Ensure that all children have a right to a healthy and safe childhood in a permanent placement
  • Ensure that whenever removal of a child from the home is necessary, the child is entitled to maintain ethnic, cultural, and religious heritage, whenever appropriate

It is intended that the mandatory reporting of abuse or endangerment cases by professional people and other community members to the appropriate authority will cause the protective services of the State to seek to prevent further abuses, protect and enhance the welfare of these children, and preserve family life, whenever appropriate.

Whenever it is necessary to remove a child from the child’s home, the department shall, when it is in the best interests of the child, place the child with the child’s noncustodial birth parent or with the child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, when placement with the extended family is approved by the department, prior to placing the child in an alternative protective or residential facility. Prior to approving a placement, the department shall investigate whether anyone living in the home has been convicted of a crime involving serious harm to children.

In implementing this policy, the child’s health and safety are of paramount concern.

Grounds for Involuntary Termination of Parental Rights

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

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may order a termination of parental rights upon a finding established by clear and convincing evidence that any of the following circumstances exist:

  • The child has been abandoned.
  • The parent has been convicted of a felony sexual offense that resulted in the birth of the child.
  • The parent has:
    • Subjected a child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, sexual abuse, or chronic and severe neglect
    • Committed, aided, abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child
    • Committed aggravated assault against a child
    • Committed neglect of a child that resulted in serious bodily injury or death
    • Had parental rights to the child’s sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent’s ability to adequately care for the child at issue
  • A putative father has failed to do any of the following:
    • Contribute to the support of the child for an aggregate period of 1 year, although able to do so
    • Establish a substantial relationship with the child, as demonstrated by visiting the child at least monthly or maintaining regular contact when physically and financially able to do so
    • Register with the putative father registry
  • Reasonable efforts to rehabilitate the parent have failed.
  • The conduct or condition of the parent makes the parent unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider, but is not limited to, the following:
    • Emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time
    • A history of violent behavior by the parent
    • Excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child
    • Incarceration of the parent for more than 1 year, and reunification of the child with the parent is not in the best interests of the child because of the child’s circumstances, including placement options; age; and developmental, cognitive, and psychological needs
Circumstances That Are Exceptions to Termination of Parental Rights

If a proceeding under this chapter involves an Indian child and is subject to the Federal Indian Child Welfare Act, a qualified expert witness is required to testify that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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

Current Through February 2013

Infant’s Age

A newborn infant may be surrendered under this act. The term ‘newborn’ means an infant whom a physician reasonably believes to be no more than 30 days old.

Who May Relinquish the Infant

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

Who May Receive the Infant

The child may be surrendered to an emergency services provider, including:

  • A uniformed or otherwise identifiable employee of a fire department, hospital, or law enforcement agency, when the individual is on duty inside the premises of the fire department, hospital, or law enforcement agency
  • Any law enforcement officer who is in uniform or is otherwise identifiable
Responsibilities of the Safe Haven Provider

The emergency services provider shall, without a court order, immediately take the newborn into temporary protective custody and shall take action necessary to protect the physical health and safety of the newborn. The emergency services provider shall make a reasonable effort to do all of the following:

  • Inform the parent that by surrendering the newborn, he or she is releasing the newborn to be placed for adoption
  • Inform the parent that he or she has 60 days to petition the court to regain custody of the newborn
  • Encourage the parent to provide any relevant family or medical information, including information regarding any Tribal affiliation
  • Provide the parent with information about counseling or medical attention
  • Ask the parent for the parent’s name
  • Inform the parent that the State is required to make a reasonable attempt to identify the other parent and to obtain relevant medical family history and then ask the parent to identify the other parent
  • Inform the parent that the department can provide confidential services to the parent
  • Inform the parent that the parent may sign a relinquishment for the newborn to be used at a hearing to terminate parental rights

An emergency services provider that is not a hospital shall transfer the newborn to a hospital. A hospital that takes a newborn into temporary protective custody must have the newborn examined by a physician. If a physician who examines the newborn either determines that there is reason to suspect the newborn has experienced abuse or neglect, other than being surrendered to an emergency services provider, or that the infant is not a newborn, the physician shall immediately report to the Department of Public Health and Human Services.

The hospital shall, no later than the first business day after taking possession of the newborn, notify the department that the hospital has taken a newborn into temporary protective custody.

Immunity for the Provider

A hospital and the agents and employees of the hospital are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this part, except for an act or omission constituting gross negligence or willful or wanton misconduct.

A fire department or law enforcement agency and the agents and employees of a fire department or law enforcement agency are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this part, except for an act or omission constituting gross negligence or willful or wanton misconduct.

Protection for Relinquishing Parent

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

A criminal investigation may not be initiated solely on the basis of a newborn being surrendered to an emergency services provider in the absence of reasonable suspicion of actual abuse or neglect. Except when there is intentional infliction of injury to the abandoned infant, a criminal prosecution may not be initiated involving the abandonment of an infant that was no more than 30 days old and was surrendered to an emergency services provider.

Effect on Parental Rights

Any Indian heritage brings the newborn within the jurisdiction of the Indian Child Welfare Act.

Upon receipt of notice that a newborn has been surrendered, the department shall:

  • Request assistance from law enforcement officials to investigate and determine whether the newborn is a missing child
  • Within 30 days, make reasonable efforts to identify and locate a parent who did not surrender the newborn

The department is not required to attempt to reunify the newborn with the newborn’s parents. The department shall place the newborn with prospective adoptive parents as soon as possible.

Any person alleging to be the biological parent of a newborn who was surrendered to an emergency services provider may, within 60 days of the date of surrender of the newborn, file an action with the court for custody. Before making a custody decision, the court shall determine whether the individual filing the custody action is the newborn’s biological parent. The putative father registry provisions apply to any court proceeding under this part.

In a custody action, the court shall determine custody of the newborn based on the newborn’s best interest with the goal of achieving permanent placement for the newborn at the earliest possible date.

A parent who surrenders a newborn and who does not file a custody action is presumed to have knowingly waived the parent’s parental rights to the newborn. If a custody action is not filed or if the parent is denied custody of the newborn, the department shall file a petition requesting appropriate relief with the goal of achieving permanent placement for the newborn at the earliest possible date.

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

A ‘legal guardian’ is a person who has qualified as a caregiver of a child in the custody of the Department of Public Health and Human Services or Tribe and has been appointed guardian by the court.

A ‘legal guardianship’ is a judicially created relationship between a child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver the following parental rights with respect to the child: protection, education, care and control of the child, custody of the child, and decision-making.

A ‘kinship guardian’ is:

  • A member of the child’s extended family
  • A member of the child’s or family’s Tribe
  • The child’s godparents
  • The child’s stepparents
  • A person to whom the child, child’s parents, and family ascribe a family relationship and with whom the child has had a significant emotional tie that existed prior to the agency’s involvement with the child or family; also known as ‘fictive kin’

Documentation demonstrating that the prospective guardian meets the ‘fictive kin’ definition must be maintained in the child’s case file. Documentation may include, but is not limited to, the child’s and/or birth parent(s) statement ascribing a family relationship and significant emotional tie that existed prior to the agency’s involvement.

A ‘nonkinship guardian’ is a person to whom the child or child’s family did not have a significant emotional tie that existed prior to the agency’s involvement with the child or family (i.e. foster parent).

Purpose of Guardianship

A guardian may be appointed for a dependent child when the Department has made reasonable efforts to reunite the parent and child, further efforts to reunite the parent and child by the department likely would be unproductive, and reunification of the parent and child would be contrary to the best interests of the child.

A Guardian’s Rights and Responsibilities

A guardian appointed under this section may exercise the powers and has the duties provided in § 72-5-231.

Unless otherwise limited by the court, a guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent’s child. However, a guardian is not legally obligated to provide from the guardian’s own funds for the child and is not liable to third persons by reason of the parental relationship for acts of the child.

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

Qualifying the Guardian

In order to be approved as a guardian, the prospective guardian and the guardian’s home must meet the requirements set forth for youth foster homes in title 37, chapter 51 of the Administrative Rules.

The child for whom guardianship is being considered must have resided with the prospective guardian for a minimum of 6 months.

A written assessment of the prospective guardian and the guardian’s home must be completed. The assessment must include a determination that the prospective guardian and home of the prospective guardian meet the requirements of this rule. The assessment must demonstrate the appropriateness of the proposed guardian to become the legal custodian for a specific child. Factors to be considered in determining the appropriateness of the proposed guardian include:

  • The proposed guardian’s knowledge of the child’s background, including placement history, history of trauma, and the potential effect of that history on the child’s development and future functioning
  • Understanding and acceptance of the continued role of the child’s birth family
  • Understanding and acceptance of the powers and duties of a guardian
  • The desire of the prospective guardian to become the child’s guardian

If the child for whom guardianship is being considered is age 12 or older, the child must be consulted regarding the plan for guardianship.

Procedures for Establishing Guardianship

The court may, upon the petition of the department or guardian ad litem, enter an order appointing a guardian for a child who has been placed in the temporary or permanent custody of the department. The court may appoint a guardian if the following facts are found by the court:

  • The department has given its written consent to the appointment of the guardian, and whether or not the guardianship is to be subsidized.
  • If the guardianship is to be subsidized, the department has given its written consent after the department has considered initiating or continuing financial subsidies.
  • The child has been adjudicated a youth in need of care.
  • The child has lived with the potential guardian in a family setting, and the potential guardian is committed to providing a long-term relationship with the child.
  • It is in the best interests of the child to remain with or to be placed with the potential guardian.
  • Either termination of parental rights to the child is not in the child’s best interests or parental rights to the child have been terminated, but adoption is not in the child’s best interests.
  • If the child for whom the petition for guardianship has been filed is an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the child’s Tribe has received notification from the State of the initiation of the proceedings.

In the case of an abandoned child, the court may give priority to a member of the abandoned child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, if placement with the extended family member is in the best interests of the child.

Contents of a Guardianship Order

The entry of a decree of guardianship pursuant to this section terminates the custody of the department and the involvement of the department with the child and the child’s parents, except for the department’s provision of a financial subsidy, if any.

Modification/Revocation of Guardianship

The court may revoke a guardianship if the court finds, after hearing a petition for removal of the child’s guardian, that continuation of the guardianship is not in the best interests of the child. Notice of a hearing on the petition must be provided by the moving party to the child’s lawful guardian, the department, any court-appointed guardian ad litem, the child’s parent if the rights of the parent have not been terminated, and other persons directly interested in the welfare of the child.

A guardian may petition the court for permission to resign the guardianship. A petition may include a request for the appointment of a successor guardian. After notice and hearing the petition for removal or permission to resign, the court may appoint a successor guardian or may terminate the guardianship and restore temporary legal custody to the department.

Eligibility for Guardianship Subsidy

The department may provide a financial subsidy to a guardian if the guardianship meets the department’s criteria and if the department determines that a subsidy is in the best interests of the child.

In regulation: A child is eligible to have State-subsidized guardianship payments made on the child’s behalf if the child has been adjudicated a youth in need of care. Subsidized guardianship payments may be made to the guardian of an eligible child when:

  • The child meets the guardianship criteria found in § 41-3-444.
  • The prospective guardian and guardian’s home meet the requirements of regulation.
  • The court has issued a decree of guardianship.
  • An agreement describing the terms and conditions of the guardianship subsidy has been negotiated by the department with the prospective guardian.
  • Prior to the issuance of the guardianship decree, the prospective guardian and the department have signed an agreement describing the negotiated terms and conditions of the subsidy.

Under the Title IV-E State Plan, Guardianship Assistance Program, approved by the U.S. Department of Health and Human Services, the department is authorized to utilize Federal funds to pay guardianship subsidies on behalf of children who meet the requirements established under the terms and conditions of the Title IV-E State Plan, Guardianship Assistance Program.

Federally subsidized guardianship payments may be made to the guardian of an eligible child when:

  • The prospective guardian meets the definition of a ‘kinship guardian’ as established in the Title IV-E State Plan.
  • The requirements of Administrative Rule 37.51.1101 are met.
  • The requirements established under the Title IV-E State Plan and the requirements of Administrative Rule 37.50.1102 are met.
Links to Agency Policies

Montana Department of Public Health and Human Services, Child & Family Services Policy Manual, see sections 302-4 and 407-4.

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Whenever it is necessary to remove a child from the child’s home, the Department of Public Health and Human Services shall, when it is in the best interests of the child, place the child with the child’s noncustodial birth parent or with the child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, when placement with the extended family is approved by the department, prior to placing the child in an alternative protective or residential facility.

Requirements for Placement with Relatives

Prior to approving a placement, the department shall investigate whether anyone living in the home has been convicted of a crime involving serious harm to children.

In regulation: The department may, at its discretion, issue a provisional license restricted for care of a specific child or children for any period up to 4 months to any license applicant for a kinship foster home that has:

  • Met all licensing requirements for fire safety
  • Completed and signed a release of information form provided by the department
  • Submitted completed fingerprint cards on all adult household members
  • A satisfactory child protective and adult protective services check for all adults present in the home
  • Agreed in writing to comply fully with all licensing requirements established by these rules prior to the expiration of the provisional license

The department may, at its discretion, renew a provisional license for no more than 2 months if the license applicant shows good cause for unintentional failure to comply fully with all licensing requirements within the time period covered by the prior provisional license.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

A parent or guardian may make a direct parental placement of his or her child for adoption with an extended family member.

The term ‘extended family member’ means a person who is or was the adopted child’s parent, grandparent, aunt or uncle, brother or sister, or child.

Requirements for Adoption by Relatives

In a direct parental placement adoption, if the court is satisfied that adoption is in the best interests of the child, the court may waive the requirement of a preplacement and postplacement evaluation when a parent or guardian places a child for adoption directly with an extended family member of the child.

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

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

Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts include, but are not limited to:

  • Voluntary protective services agreements
  • Development of individual written case plans specifying State efforts to reunify families
  • Placement in the least disruptive setting possible
  • Provision of services pursuant to a case plan
  • Periodic review to ensure timely progress
When Reasonable Efforts Are Required

The Department of Public Health and Human Services shall make reasonable efforts:

  • To prevent the necessity of removal of a child from a child’s home
  • To reunify families that have been separated
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if a court finds by clear and convincing evidence that a parent has:

  • Subjected a child to aggravated circumstances, including abandonment, torture, chronic abuse, sexual abuse, or chronic and severe neglect
  • Committed, aided, abetted, or attempted to commit homicide of a child
  • Committed aggravated assault against a child
  • Committed neglect of a child that resulted in serious bodily injury or death
  • Had parental rights to a sibling terminated involuntarily, and circumstances of the termination are relevant to the parent’s ability to adequately care for the child at issue

Preservation or reunification services are not required for a putative father if the court finds that the putative father has failed to do any of the following:

  • Contribute to the support of the child for an aggregate period of 1 year, although able to do so
  • Establish a substantial relationship with the child, as demonstrated by:
    • Visiting the child at least monthly when physically and financially able to do so
    • Having regular contact with the child
    • Manifesting an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent
  • Register with the putative father registry, been adjudicated to be the father of the child for the purposes of child support, or been recorded on the child’s birth certificate as the child’s father

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

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

7th Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

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7th Circuit

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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.  

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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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

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5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

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3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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