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

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

Nebraska

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Child abuse or neglect’ means knowingly, intentionally, or negligently causing, or permitting a minor child to be placed in a situation that endangers his or her life or physical health, or causes or permits a child to be cruelly confined or cruelly punished.

Neglect

‘Child abuse or neglect’ means knowingly, intentionally, or negligently causing or permitting a minor child to be deprived of necessary food, clothing, shelter, or care or causing or permitting a child age 6 or younger to be left unattended in a motor vehicle.

Sexual Abuse/Exploitation

The term ‘child abuse or neglect’ includes knowingly, intentionally, or negligently causing or permitting a minor child to be:

  • Sexually abused
  • Sexually exploited by allowing, encouraging, or forcing the child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions
Emotional Abuse

The term ‘child abuse or neglect’ includes knowingly, intentionally, or negligently causing or permitting a minor child to be placed in a situation that endangers his or her mental health.

Abandonment

Citation: Rev. Stat. § 28-705(3)
When a person abandons and neglects to provide for his or her child or dependent stepchild for 3 consecutive months or more, it shall be prima facie evidence of intent to commit abandonment of a child or dependent stepchild.

Standards for Reporting

Citation: Rev. Stat. § 28-711
A report is required when a mandatory reporter or any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances that reasonably would result in child abuse or neglect.

Persons Responsible for the Child

A report must be made when any person is responsible for the abuse or neglect of a child.

Exceptions

No exceptions are specified in statute.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the occurrence of one or more of the following acts between household members:

  • Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument
  • Placing, by means of credible threat, another person in fear of imminent bodily injury
  • Engaging in sexual contact or sexual penetration without consent, as defined in § 28-318

For purposes of this subdivision, ‘credible threat’ means a verbal or written threat, including a threat performed through the use of an electronic communication device or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct that is made by a person with the apparent ability to carry out the threat, so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat shall not prevent the threat from being deemed a credible threat under this section.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person commits the offense of ‘domestic assault in the third degree’ if he or she:

  • Intentionally and knowingly causes bodily injury to his or her intimate partner
  • Threatens an intimate partner with imminent bodily injury
  • Threatens an intimate partner in a menacing manner

A person commits the offense of ‘domestic assault in the second degree’ if he or she intentionally and knowingly causes bodily injury to his or her intimate partner with a dangerous instrument.

A person commits the offense of ‘domestic assault in the first degree’ if he or she intentionally and knowingly causes serious bodily injury to his or her intimate partner.

Persons Included in the Definition

In civil law: ‘Family or household members’ includes:

  • Spouses or former spouses
  • Children
  • Persons who are presently residing together or who have resided together in the past
  • Persons who have a child in common whether or not they have been married or have lived together at any time
  • Other persons related by consanguinity or affinity
  • Persons who are presently or who have been involved in a dating relationship with each other

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

In criminal law: ‘Intimate partner’ means:

  • A spouse or former spouse
  • Persons who have a child in common whether or not they have been married or lived together at any time
  • Persons who are or were involved in a dating relationship

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

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person participating in an investigation or making a report of child abuse or neglect required by § 28-711 or participating in a judicial proceeding resulting therefrom shall be immune from any civil or criminal liability that might otherwise be incurred or imposed, except for maliciously false statements.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

When a mandated reporter has reasonable cause to believe that a child has been subjected to abuse or neglect, he or she shall report to the proper law enforcement agency or the Department of Health and Human Services on the toll-free number.

The report may be made orally by telephone with the caller giving his or her name and address and shall be followed by a written report.

Content of Reports

The report shall contain:

  • The address and age of the child
  • The address of the person having custody of the child
  • The nature and extent of the abuse or neglect or the conditions or circumstances that would reasonably result in abuse or neglect
  • Any evidence of previous abuse or neglect
  • Any other information that in the opinion of the reporter may be helpful in establishing the cause of the child abuse or neglect and the identity of the perpetrator or perpetrators
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The department shall establish a statewide toll-free number to be used by any person any hour of the day or night, any day of the week, to make reports of child abuse or neglect.

Initial Screening Decisions

Allegations that meet the definition of child abuse and neglect will be assigned for assessment. When a reporting party’s concerns do not meet the definition of child maltreatment, but other agencies or department programs exist to deal with the concern, the report will be referred to the appropriate agency or program.

Agency Conducting the Assessment/Investigation

It is the duty of the law enforcement agency to investigate the report, to take immediate steps to protect the child, and to institute legal proceedings, if appropriate. The law enforcement agency may request assistance from the department during the investigation and shall, by the next working day, notify either the hotline or the department of receipt of the report, including whether or not an investigation is being undertaken by the law enforcement agency. A copy of all reports, whether or not an investigation is being undertaken, shall be provided to the department.

In regulation: All department assessments on suspected child abuse and neglect will be coordinated with the appropriate law enforcement agency.

Assessment/Investigation Procedures

When law enforcement has investigated a report and has reported its findings to the department, the department will enter the findings in the central registry. The department will not begin another assessment unless the law enforcement investigation indicates the child is at continued risk or the information on the family is incomplete.

When a child is an alleged victim of abuse or neglect by his or her parent, a worker has the authority to contact the child to conduct an interview necessary for an assessment.

The following tasks apply to any initial assessment conducted by Child Protective Services:

  • Interview the child, parents, siblings, and other relevant family members or collateral contacts
  • Gather information from any other sources who may have information about the presenting problem or alleged maltreatment or the risk and safety of the children
  • Observe the child, siblings, and parents
  • Observe the interaction among family members and the home and neighborhood
  • Document and analyze the information gathered

Specific areas for observation are:

  • The physical condition of the children, including any observable effects of maltreatment
  • The emotional status of the children, including mannerisms, signs of fear, and development status
  • The emotional and behavioral status of the parents during the interviewing process, levels of denial and resistance, and use of defense mechanisms
  • Interactions among the family members, including oral and facial expressions and body language
  • The physical status of the home, including cleanliness, structure, hazards, or dangerous living conditions
  • Signs of excessive alcohol use and use of illicit drugs
  • The climate of the neighborhood, including level of violence and support, and accessibility of transportation, telephones, or other means of communication
Timeframes for Completing Investigations

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

Classification of Reports

All cases entered into the central register shall be classified as one of the following:

  • Court substantiated: If a court of competent jurisdiction has entered a judgment of guilty against the subject of the report of child abuse or neglect upon a criminal complaint, indictment, or information, or there has been an adjudication of jurisdiction of a juvenile court over the child that relates to the report of child abuse or neglect
  • Court pending: If a criminal complaint, indictment, or information or a juvenile petition that relates to the subject of the report of abuse or neglect has been filed and is pending in a court of competent jurisdiction
  • Agency substantiated: If the department’s determination of child abuse or neglect against the subject of the report of child abuse or neglect was supported by a preponderance of the evidence and based upon an investigation

In regulation: Based on the information gathered and analyzed during the initial assessment phase, the worker will arrive at a finding regarding the maltreatment report. The decision at this point is whether there is credible evidence to support the finding that child abuse or neglect as defined by state statute has occurred. Case status determinations include:

  • Court substantiated: A court has entered a judgment of guilty in a related criminal case.
  • Petition to be filed: A criminal complaint related to the case will be filed with a court.
  • Inconclusive: Evidence indicates that more likely than not (preponderance) that child abuse or neglect occurred and court adjudication does not occur.
  • Unable to locate: The subjects of the maltreatment report have not been located.
  • Unfounded: All reports not classified as any of the above will be classified as unfounded.

Parental Drug Use as Child Abuse

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Current Through April 2015

Any person who knowingly or intentionally causes or permits a child or vulnerable adult to inhale or have contact with methamphetamine, a chemical substance, or paraphernalia is guilty of a Class I misdemeanor. For any second or subsequent conviction under this subsection, any person so offending is guilty of a Class IV felony.

Any person who knowingly or intentionally causes or permits a child or vulnerable adult to ingest methamphetamine, a chemical substance, or paraphernalia is guilty of a Class I misdemeanor. For any second or subsequent conviction under this subsection, any person so offending shall be guilty of a Class IIIA felony.

Any child or vulnerable adult who resides with a person violating the subsections above shall be taken into protective custody as provided in the Adult Protective Services Act or the Nebraska Juvenile Code.

Any person who violates the subsections above and a child or vulnerable adult actually suffers serious bodily injury by ingestion of, inhalation of, or contact with methamphetamine, a chemical substance, or paraphernalia is guilty of a Class IIIA felony unless the ingestion, inhalation, or contact results in the death of the child or vulnerable adult, in which case the person is guilty of a Class IB felony.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court, on its own motion or upon application of a party to the proceedings, shall appoint a guardian ad litem (GAL) when a child is removed from his or her surroundings due to serious endangerment pursuant to § 43-248(3) or (4). If removal has not occurred, a GAL shall be appointed at the commencement of all cases brought under § 43-247(3)(a) or (8) [neglect, abandonment, or voluntary relinquishment of a child] and § 28-707 [child abuse].

A judge may appoint a court-appointed special advocate (CASA) volunteer in any proceeding when, in the opinion of the judge, a child who may be affected by such proceeding requires services that a volunteer can provide, and the court finds that the appointment is in the best interests of the child.

The Use of Court-Appointed Special Advocates (CASAs)

A CASA volunteer shall be appointed pursuant to a court order. The court order shall specify the volunteer as a friend of the court acting on the authority of the judge. The volunteer acting as a friend of the court may offer as evidence a written report with recommendations consistent with the best interests of the child, subject to all pertinent objections.

A memorandum of understanding between a court and a CASA program is required in any county where a program is established and shall set forth the roles and responsibilities of the CASA volunteer.

The volunteer’s appointment shall conclude:

  • When the court’s jurisdiction over the child terminates
  • Upon discharge by the court on its own motion
  • With the approval of the court, at the request of the program director of the CASA program to which the volunteer is assigned
  • Upon successful motion of a party to the action for the removal of the volunteer because the party believes the volunteer has acted inappropriately, is unqualified, or is unsuitable for the appointment

A CASA volunteer shall not:

  • Accept any compensation for the duties and responsibilities of his or her appointment
  • Have any association that creates a conflict of interest with his or her duties
  • Be related to any party or attorney involved in a case
  • Be employed in a position that could result in a conflict of interest or give rise to the appearance of a conflict
  • Use the position to seek or accept gifts or special privileges
Qualifications/Training

If the judge determines that an attorney with the requisite training is unavailable within the county, he or she may appoint an attorney without such training.

All CASA volunteers shall participate fully in preservice training, including, but not limited to, instruction on recognizing child abuse and neglect, cultural awareness, socioeconomic issues, child development, the juvenile court process, permanency planning, volunteer roles and responsibilities, advocacy, information gathering, and documentation. Volunteers shall be required to participate in observation of court proceedings prior to appointment. Each CASA program shall provide a minimum of 10 hours of inservice training per year to volunteers.

The minimum qualifications for any prospective CASA volunteer are that he or she shall:

  • Be at least age 21 and have demonstrated an interest in children and their welfare
  • Be willing to commit to the court for a minimum of 1 year of service to a child
  • Complete an application, including providing background information required below
  • Participate in a screening interview
  • Participate in the required training

For the required background screening, the program director shall obtain the following information regarding a volunteer applicant:

  • A check of the applicant’s criminal history record information maintained by the Feeral Bureau of Investigation through the Nebraska State Patrol
  • A check of his or her record with the central registry of child protection cases
  • A check of his or her driving record
  • At least three references of people who will attest to the applicant’s character, judgment, and suitability for the position of a CASA volunteer

If the applicant has lived in Nebraska for less than 12 months, the program director shall obtain the records required above from all other jurisdictions in which the applicant has lived during the preceding year.

In court rules: The court shall appoint an appropriately trained attorney as a GAL. This includes 6 hours of specialized training provided by the Administrative Office of the Nebraska Supreme Court. In order to maintain eligibility to be appointed and to serve as a GAL, an attorney shall complete 3 hours of specialized training per year as provided by the Administrative Office of the Court.

Specific Duties

The GAL:

  • Shall be present at all hearings unless expressly excused by the court
  • Is not appointed to defend the parents or other custodian of the child but shall defend the legal and social interests of the child
  • May at any time move the court to provide medical or psychological treatment or evaluation
  • Shall make every reasonable effort to become familiar with the needs of the child, including consulting with the child within 2 weeks after the appointment and once every 6 months thereafter
  • May present evidence and witnesses and cross-examine witnesses at all evidentiary hearings
  • Shall be responsible for making recommendations to the court regarding the temporary and permanent placement of the child and shall submit a written report to the court at every dispositional or review hearing
  • Shall consider other information that is warranted by the nature and circumstances of a particular case
  • May file a petition in the juvenile court on behalf of the juvenile

A CASA shall:

  • Conduct an independent examination regarding the best interests of the child that will provide factual information to the court regarding the child and the child’s family
  • Determine whether an appropriate permanency plan has been created for the child, whether appropriate services are being provided to the child and the child’s family, and whether the treatment plan is progressing in a timely manner
  • With the support and supervision of the CASA program staff, make recommendations consistent with the best interests of the child regarding placement, visitation, and appropriate services for the child and the child’s family
  • Prepare a written report to be distributed to the court and the parties to the proceeding
  • Monitor the case to ensure that the child’s essential needs are being met
  • Make every effort to attend all hearings, meetings, and any other proceeding concerning the case
How the Representative Is Compensated

The court may order the expense of the GAL’s consultation, if any, to be paid by the county in which the juvenile court action is brought, or the court may, after notice and hearing, assess the cost of such consultation, if any, in whole or in part to the parents of the child. The ability of the parents to pay and the amount of the payment shall be determined by the court by appropriate examination.

Counsel and GALs appointed as provided in § 43-272 shall apply to the court that handled the proceedings for fees for services performed. The court upon hearing the application shall fix reasonable fees. The county board of the county wherein the proceedings were heard shall allow the account, bill, or claim presented by any attorney or GAL for services performed in the amount determined by the court. No such account, bill, or claim shall be allowed by the county board until the amount has been determined by the court.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Following the investigation conducted pursuant to § 43-1311 and immediately following the initial placement of the child, a safe and appropriate plan shall be established for the child.

In regulation: A written case plan will be developed following the assessment of the family or child’s needs. Case plan evaluation and revision will then occur at least every 6 months. A written court report incorporating the elements of the case plan will be submitted to the court at least 3 days before, or as dictated by local court protocol, the initial dispositional hearing or any subsequent review hearing.

When a child is placed in the custody of the department, Federal regulations require that a case plan be developed within 60 days of the date of placement. When there is insufficient time to develop a case plan within this time frame for the child welfare cases, the safety plan will serve as the case plan.

Who May Participate in the Case Planning Process

The person or court in charge of the child shall cause to be established a safe and appropriate plan for the child.

In regulation: Case planning is the responsibility of the caseworker with the active involvement of the child and family and the members of the team supporting services to the family.

Contents of a Case Plan

The plan shall contain at least the following:

  • The purpose for which the child has been placed in foster care
  • The estimated length of time necessary to achieve the purposes of the foster care placement
  • A description of the services to be provided in order to accomplish the purposes of the foster care placement
  • The person or persons who are directly responsible for the implementation of such plan
  • A complete record of the previous placements of the foster child
  • The name of the school the child shall attend, as provided in § 43-1311

In regulation: The department will include in the plan for a ward who is age 16 or older a written proposal describing programs and services designed to assist the ward in acquiring independent living skills. A ward whose goal is independent living or is determined to be at a greater risk of failure will receive a proportionately greater emphasis on these services. The specific case plan will be based on an assessment of the ward’s readiness for independent living.

The case planning process will:

  • Focus on the problems identified in the assessment of the family and youth
  • Identify a permanency objective
  • Establish and prioritize goals
  • Identify the action steps needed to reunite the family or to prevent out-of-home placement
  • Use the family’s resources
  • Build upon the family’s and child’s strengths
  • Develop or maintain family responsibility
  • Identify who is responsible for tasks
  • Establish timeframes for achieving case goals, projected discharge, and case closure
  • Establish an evaluation process to assess whether outcomes are being achieved

Department staff will use Tribal social services whenever possible when working with Native American parents and children. Case planning and service provision will be based upon the social and cultural standards of the Tribe. Active efforts will be made to provide culturally relevant remedial and rehabilitative services to prevent the breakup of the family and to reunify the family.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court that has jurisdiction over a child who is placed in foster care shall review the dispositional order for the child at least once every 6 months.

A permanency hearing shall be conducted by the court:

  • No later than 12 months after the child enters foster care and at least annually thereafter
  • Within 30 days of a finding that reasonable efforts to reunify are not required
Persons Entitled to Attend Hearings

Notice of a hearing shall be provided to:

  • The person charged with the care of the child
  • The child’s parents or guardian unless parental rights have been terminated
  • The foster child if he or she is age 14 or older
  • The foster parents
  • The child’s guardian ad litem
  • Foster Care Review Office and designated local foster care review board
  • The preadoptive parent
  • The relative providing care for the child

Notice to the foster parent, preadoptive parent, or relative providing care shall not be construed to require that such foster parent, preadoptive parent, or relative is a necessary party to the review. The court shall inquire into the well-being of the foster child by asking questions, if present at the hearing, of any willing foster parent, preadoptive parent, or relative providing care for the child.

Determinations Made at Hearings

In reviewing the foster care status and permanency plan of a child, the court shall determine whether:

  • Placement of the child outside the home should continue upon a written determination that return of the child to his or her home would be contrary to the welfare of such child.
  • Reasonable efforts to preserve and reunify the family, if required under § 43-283.01, have been made.
  • The goals of the foster care placement and of the foster care plan or permanency plan are safe and appropriate.
  • The individual physical, psychological, and sociological needs of the child are being met.
Permanency Options

The permanency plan determined for the child shall include whether and, if applicable, when the child will be:

  • Returned to the parent
  • Referred to the State for filing of a petition for termination of parental rights
  • Placed for adoption
  • Referred for guardianship
  • Placed for adoption with a fit and willing relative

Determining the Best Interests of the Child

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Current Through March 2016

The following principles shall guide the actions of State government when involved with families and children in need of assistance or services:

  • Prevention, early identification of problems, and early intervention shall be guiding philosophies when the State plans or implements services for families or children, when such services are in the best interests of the child.
  • When families or children request assistance, State and local government resources shall be utilized to complement community efforts to help meet the needs of such families. The State shall encourage community involvement in the provision of services to families and children in order to encourage and provide innovative strategies in the development of services for families and children.
  • The State shall develop methods to coordinate services and resources for families and children. Every child-serving agency shall recognize that the jurisdiction of such agency serving children with multiple needs is not mutually exclusive.
  • When children are removed from their home, permanency planning shall be the guiding philosophy. It shall be the policy of the State:
    • To make reasonable efforts to reunite the child with his or her family in a timeframe appropriate to the age and developmental needs of the child as long as the best interests of the child–the health and safety of the child being of paramount concern–and the needs of the child have been given primary consideration in making a determination whether reunification is possible
    • When a child cannot remain with parents, to give preference to relatives as a placement resource
    • To minimize the number of placement changes for children in out-of-home care as long as the needs, health, safety, and best interests of the child in care are considered
  • When families cannot be reunited and when active parental involvement is absent, adoption shall be aggressively pursued. Absent the possibility of adoption, other permanent settings shall be pursued. In either situation, the health, safety, and best interests of the child shall be the overriding concerns. Preference shall be given to relatives for the permanent placement of the child.

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 terminate all parental rights when the court finds such action to be in the best interests of the child and one or more of the following conditions exist:

  • The parent has abandoned the child for 6 months or more.
  • The parent has substantially and continuously or repeatedly neglected the child or a sibling of the child.
  • The parent, being financially able, has willfully neglected to provide the child with the necessary subsistence, education, or other care or has neglected to pay for the child’s care when legal custody of the child is with others and such payment is ordered by the court.
  • The parent is unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior.
  • The parent is unable to discharge parental responsibilities because of mental illness or mental deficiency, and there are reasonable grounds to believe that such condition will continue for a prolonged indeterminate period.
  • Reasonable efforts to preserve and reunify the family have failed to rehabilitate the parent.
  • The child has been in an out-of-home placement for 15 or more of the most recent 22 months.
  • The parent has inflicted upon the child, by other than accidental means, serious bodily injury.
  • The parent has subjected the child or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.
  • The parent has:
    • Committed murder or voluntary manslaughter of another child of the parent
    • Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent
    • Committed a felony assault that resulted in serious bodily injury to the child or another minor child of the parent
  • One parent has been convicted of felony sexual assault of the other parent.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition shall not be filed to terminate the parental rights of the child’s parents if the basis for the petition is that:

  • The parent is financially unable to provide health care for the child.
  • The parent is incarcerated.

The petition is not required to be filed if:

  • The child is being cared for by a relative.
  • The Department of Health and Human Services has documented in the case plan or permanency plan a compelling reason for determining that filing such a petition would not be in the best interests of the child.
  • The family of the child has not had a reasonable opportunity to avail themselves of the services deemed necessary in the case plan or permanency plan approved by the court if reasonable efforts to preserve and reunify the family are required by law.
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 child who is 30 days old or younger may be relinquished.

Who May Relinquish the Infant

A person may leave the child at a licensed hospital.

Who May Receive the Infant

The child may be left in the custody of an employee on duty at a hospital licensed by the State of Nebraska.

Responsibilities of the Safe Haven Provider

The hospital shall promptly contact appropriate authorities to take custody of the child.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent

No person shall be prosecuted for any crime based solely upon the act of leaving a child 30 days old or younger in the custody of an employee on duty at a hospital licensed by the State of Nebraska.

Effect on Parental Rights

This issue is not addressed in the statutes reviewed.

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘kinship home’ means a home where a child receives foster care and at least one of the primary caregivers has previously lived with the child or a sibling of the child, or is a trusted adult that has a preexisting, significant relationship with the child or a sibling of the child.

The term ‘relative home’ means a home where a child receives foster care and at least one of the primary caregivers is related to the child or to a sibling of the child in his or her care by blood, marriage, or adoption or, in the case of an Indian child, at least one of the primary caregivers is an extended family member as defined in § 43-1503.

For an Indian child, an ‘extended family member’ shall be as defined by the law or custom of the Indian child’s Tribe or, in the absence of such law or custom, shall be a person who has reached age 18 and who is the Indian child’s parent, grandparent, aunt or uncle, clan member, band member, sibling, brother-in-law or sister-in-law, niece or nephew, cousin, or stepparent.

Purpose of Guardianship

Legal guardianship is considered as a permanency objective when:

  • All efforts to reunify the family have been exhausted.
  • The child cannot return home.
  • All reasonable efforts to secure adoption of the child have been unsuccessful, or it is determined that adoption is not in the best interests of the child.
A Guardian’s Rights and Responsibilities

In the order granting guardianship, the juvenile court shall grant to the guardian such powers, rights, and duties with respect to the care, maintenance, and treatment of the child, as the biological or adoptive parent of the child would have.

A guardianship established under this section does not terminate the parent-child relationship, including:

  • The right of the child to inherit from his or her parents
  • The right of the biological parents to consent to the child’s adoption
  • The responsibility of the parents to provide financial, medical, or other support as ordered by the court
Qualifying the Guardian

Before issuing an order for guardianship, the court must find that the guardian:

  • Is suitable and able to provide a safe and permanent home for the child
  • Has made a commitment to provide for the financial, medical, physical, and emotional needs of the child until the child reaches the age of majority or until the termination of extended guardianship assistance payments pursuant to § 43-4511 or 43-4514
  • Has made a commitment to prepare the child for adulthood and independence
  • Agrees to give notice of any changes in his or her residential address or the residence of the child by filing a written document in the juvenile court file of the child

In regulation: The Department of Health and Human Services will support a legal guardianship using the following guidelines:

  • The child has a relationship with a prospective guardian and has lived successfully for a minimum of 6 months in the home of the guardian, or the caseworker has determined that the child will develop a relationship with a relative or foster parent who is committed to the guardianship plan.
  • The prospective guardian and the child can function effectively without department supervision.
  • The guardian is able and willing to support the child financially, or satisfactory financial arrangements can be made.
  • The child is age 12 or older, is part of a sibling group, or is attached to the proposed guardian and adoption is not feasible.

The department will use the following priorities in selecting a potential guardian:

  • A relative of the child
  • A foster parent or another person with whom the child has an existing relationship
  • A new foster parent who is committed to the guardianship plan

The child’s wishes will be taken into consideration in any decision regarding a potential guardian.

Procedures for Establishing Guardianship

If the permanency plan for a child does not recommend return of the child to his or her parent or that the child be placed for adoption, the juvenile court may place the child in a guardianship in a relative home, in a kinship home, or with an individual as provided in § 43-285 if:

  • The child is a juvenile who has been adjudged to be dependent.
  • The child has been in the placement for at least 6 months.
  • The child consents to the guardianship, if the child is age 10 or older.

In regulation: The child, the prospective guardian, the child’s guardian ad litem, and the birth parents, if their parental rights are intact, will be consulted for consent to the guardianship. If a child under age 13 has objections to the guardianship, these will be explored with the child and the guardian ad litem, and a determination of the best interests of the child will be made. If a child age 14 or older objects to the guardianship, the guardianship will not be pursued.

To assure stability and continuity to the child, the caseworker will assist all parties involved to develop a written plan for visitation with any siblings, parents (if appropriate), and other relatives or important persons in the child’s life.

When guardianship is determined to be the plan of choice for a child, and the child has resided with the prospective guardian for a minimum of 6 months, the caseworker will advise the prospective guardian to retain legal counsel and file a petition for guardianship in the county court of the county of his or her residence. The caseworker will appear in court to testify in support of the petition.

Upon approval of the court of the guardianship, the caseworker will close the case. Once the court order establishes guardianship, the department no longer has any authority or responsibility for the child except as might exist due to a subsidized guardianship.

Contents of a Guardianship Order

In the order granting guardianship, the juvenile court:

  • May specify the frequency and nature of family time or contact between the child and his or her parents, if appropriate
  • May specify the frequency and nature of family time or contact between the child and his or her siblings, if appropriate
  • Shall require that the guardian not return the child to the physical care and custody of the person from whom the child was removed without prior approval of the court

The court shall discontinue permanency reviews and case reviews and shall relieve the department of the responsibility of supervising the placement of the child. Notwithstanding the retention of juvenile court jurisdiction, the guardianship placement shall be considered permanent for the child.

Modification/Revocation of Guardianship

The juvenile court shall retain jurisdiction over the child for modification or termination of the guardianship order. The child shall remain in the custody of the guardian unless the order creating the guardianship is modified by the court.

Guardianships established under this section shall terminate on the child’s 19th birthday unless the child is eligible for continued guardianship assistance payments under § 43-4511 or 43-4514, and an agreement is signed by the department, the guardian, and the young adult to continue the guardianship assistance. The guardian shall ensure that any guardianship assistance funds provided by the department and received by the guardian for the purpose of an extended guardianship shall be used for the benefit of the young adult.

Upon the child’s 19th birthday regardless of the existence of an agreement to extend the guardianship until the child’s 21st birthday, the guardian shall no longer have the legal authority to make decisions on behalf of the child and shall have no more authority over the person or property of the child than a biological or adoptive parent would have over his or her child, absent consent from the child.

Eligibility for Guardianship Subsidy

The department may make payments as needed on behalf of a child who has been a ward of the department after the appointment of a guardian for the child. Such payments to the guardian may include maintenance costs, medical and surgical expenses, and other costs incidental to the care of the child. The child under guardianship shall be a child for whom the guardianship would not be possible without the financial aid provided under this section.

In regulation: The subsidized guardianship program provides continued financial assistance to a child after a legal guardian has been appointed and department’s custody has been terminated. State funds may be used for subsidized guardianship payments on behalf of a child who was a ward of the department, as provided in § 43-284.02.

A child is eligible for the subsidized guardianship program if he or she is a ward of the department and meets the criteria for subsidized guardianship as follows:

  • The child has a documented behavioral, emotional, physical, or mental disability.
  • The child is a member of a sibling group of three or more to be placed together.
  • The child has a strong attachment to the potential guardian.
  • The child is age 12 or older or, if under age 12, is part of a sibling group, or is attached to the proposed guardian and cannot be freed for adoption.

A child’s eligibility ends upon the child’s 19th birthday, when the child becomes self-supporting, or when the guardianship order is terminated.

Links to Agency Policies

Nebraska Department of Health and Human Services, Child and Family Services Rules and Regulations, Title 390, Chapter 6, Permanency for Children (PDF – 462 KB)

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

When a child cannot remain with his or her parent, preference is given to relatives as a placement resource.

In any foster care or preadoptive placement of an Indian child, a preference shall be given, in the absence of good cause to the contrary, to a placement with:

  • A member of the Indian child’s extended family
  • A foster home licensed, approved, or specified by the Indian child’s Tribe
  • An Indian foster home licensed or approved by an authorized non-Indian licensing authority
  • An institution for children approved by an Indian Tribe or operated by an Indian organization that has a program suitable to meet the Indian child’s needs
Requirements for Placement with Relatives

The Department of Health and Human Services may issue a waiver for any licensing standard not related to children’s safety for a relative home that is pursuing licensure. Such waivers shall be granted on a case-by-case basis upon assessment by the department based upon the best interests of the child. A relative home that receives a waiver pursuant to this subsection shall be considered fully licensed for purposes of Federal reimbursement under the Federal Fostering Connections to Success and Increasing Adoptions Act of 2008, P.L. 110-351.

The department shall adopt and promulgate rules and regulations establishing new foster home licensing requirements that ensure children’s safety, health, and well-being but minimize the use of licensing mandates for nonsafety issues. Such rules and regulations shall provide alternatives to address nonsafety issues regarding housing and provide assistance to families in overcoming licensing barriers, especially in child-specific relative and kinship placements, to maximize appropriate reimbursement under Title IV-E of the Federal Social Security Act, as amended, including expanding the use of kinship guardianship assistance payments under 42 U.S.C. 673(d), as such act and section existed on January 1, 2013.

In regulation: Foster care services provided by grandparents to their grandchildren are not required by State law to be licensed, but the grandparents may voluntarily apply for a license.

Requirements for Placement of Siblings

Reasonable efforts shall be made to place a child and the child’s siblings in the same foster care or adoptive placement, unless such placement is contrary to the safety or well-being of any of the siblings. This requirement applies even if the custody orders of the siblings are made at separate times.

If the siblings are not placed together in a joint-sibling placement, the department shall provide the siblings and the court with the reasons why a joint-sibling placement would be contrary to the safety or well-being of any of the siblings.

When siblings are not placed together, the department shall make a reasonable effort to provide for frequent sibling visits or ongoing interaction between the child and the child’s siblings, unless the department provides the siblings and the court with reasons why such sibling visits or ongoing interaction would be contrary to the safety or well-being of any of the siblings. The court shall determine the type and frequency of sibling visits or ongoing interaction to be implemented by the department.

If an order is entered for termination of parental rights of siblings who are subject to this section, the department shall make reasonable efforts to make a joint-sibling placement or do all of the following to facilitate frequent sibling visits or ongoing interaction between the child and the child’s siblings when the child is adopted or enters a permanent placement:

  • Include in the training provided to prospective adoptive parents information regarding the importance of sibling relationships to an adopted child and counseling methods for maintaining sibling relationships
  • Provide prospective adoptive parents with information regarding the child’s siblings
  • Encourage prospective adoptive parents to plan for facilitating postadoption contact between the child and the child’s siblings
Relatives Who May Adopt

When families cannot be reunited and when active parental involvement is absent, adoption shall be aggressively pursued. Absent the possibility of adoption, other permanent settings shall be pursued. In either situation, the health, safety, and best interests of the child shall be the overriding concern. Within that context, preference shall be given to relatives for the permanent placement of the child.

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with:

  • A member of the child’s extended family
  • Other members of the Indian child’s Tribe
  • Other Indian families
Requirements for Adoption by Relatives

An adoptive home study shall not be required when the petitioner is a stepparent of the adopted person unless required by the court, except that for petitions filed on or after January 1, 1994, the judge shall order the petitioner to request the Nebraska State Patrol to file a national criminal history record information check and to request the department to conduct and file a check of the central register for any history of the petitioner of behavior injurious to, or that may endanger the health or morals of, a 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

When children and families require assistance from a State department or agency, the health and safety of the child is the paramount concern, and reasonable efforts shall be made to provide such assistance in the least intrusive and least restrictive method consistent with the needs of the child and to deliver such assistance as close to the home community of the child or family requiring assistance as possible.

When Reasonable Efforts Are Required

Reasonable efforts shall be made:

  • Prior to placement to prevent or eliminate the need for removing the juvenile from the home
  • To make it possible for the juvenile to return home safely
  • To place the juvenile in a timely manner and to finalize a permanent placement if continuation of reasonable efforts is determined to be inconsistent with the permanency plan
When Reasonable Efforts Are NOT Required

Reasonable efforts to preserve and reunify the family are not required if the court has determined that:

  • The parent has subjected the juvenile or another minor child to aggravated circumstances, including abandonment, torture, chronic abuse, or sexual abuse.
  • The parent has committed murder or voluntary manslaughter of another child, or aided, abetted, or attempted to commit such a crime.
  • The parent has committed felony assault resulting in serious bodily injury to the child or another child.
  • The parent has been convicted of felony sexual assault of the other parent of the child.
  • The parent’s parental rights to another child have been terminated involuntarily.

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

The court may appoint a standby guardian for a minor whose parent is chronically ill or near death.

How to Establish a Standby Guardian

A petition must be filed and a hearing held before the court to appoint a guardian.

The court shall appoint a person nominated by a minor who is age 14 or older, unless the court finds that the appointment is contrary to the minor’s best interests.

How Standby Authority is Activated

The standby guardian’s authority may take effect, if the minor is left without a remaining parent, upon:

  • The death of the parent
  • The mental incapacity of the parent
  • The physical debilitation and consent of the parent
Involvement of the Noncustodial Parent

Citation: Rev. Stat. § 30-2608
A parent is preferred as a guardian.

For a child born out of wedlock, the court also considers:

  • The wishes of the deceased parent, as stated in a will
  • The surviving parent’s acknowledgment of paternity, payment of child support, and fitness as a parent
Authority Relationship of the Parent and the Standby

An appointment of a standby guardian does not suspend or terminate a parent’s parental rights.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

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US Supreme Court

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

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

CPS Statutes

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

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

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2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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

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US Supreme Court

CPS Statutes

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

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

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3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

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3rd Circuit

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

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

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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)

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5th Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

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