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

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

Nevada

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: If it appears from information presented to the court that a child under age 18 may need counseling as a result of the commission of a battery that constitutes domestic violence, the court may refer the child to a child welfare services agency.

Consequences

If the court refers a child to a child welfare services agency, the court shall require the person convicted of domestic violence battery to reimburse the agency for the costs of any services provided, to the extent of his or her ability to pay.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse or neglect of a child’ means physical or mental injury of a nonaccidental nature; sexual abuse or sexual exploitation; or negligent treatment or maltreatment of a child caused or allowed by a person responsible for his or her welfare under circumstances that indicate that the child’s health or welfare is harmed or threatened with harm.

‘Physical injury’ includes, without limitation:

  • A sprain or dislocation
  • Damage to cartilage
  • A fracture of a bone or the skull
  • An intracranial hemorrhage or injury to another internal organ
  • A burn or scalding
  • A cut, laceration, puncture, or bite
  • Permanent or temporary disfigurement or loss or impairment of a part or organ of the body

Excessive corporal punishment may result in physical or mental injury constituting abuse or neglect of a child.

Neglect

Negligent treatment or maltreatment of a child occurs if a child has been subjected to harmful behavior that is terrorizing, degrading, painful, or emotionally traumatic; has been abandoned; is without proper care, control, or supervision; or lacks the subsistence, education, shelter, medical care, or other care necessary for the well-being of the child because of the faults or habits of the person responsible for the welfare of the child or the neglect or refusal of the person to provide them when able to do so.

Sexual Abuse/Exploitation

‘Sexual abuse’ includes acts upon a child constituting:

  • Incest
  • Lewdness with a child
  • Sadomasochistic abuse
  • Sexual assault
  • Statutory sexual seduction
  • Mutilation of the genitalia of a female child; aiding, abetting, encouraging, or participating in the mutilation of the genitalia of a female child; or removal of a female child from this State for the purpose of mutilating the genitalia of the child

‘Sexual exploitation’ includes forcing, allowing, or encouraging a child:

  • To solicit for or engage in prostitution
  • To view a pornographic film or literature
  • To engage in filming, photographing, recording on videotape, posing, modeling, depiction, or a live performance before an audience that involves the exhibition of a child’s genitals or any sexual conduct with a child
Emotional Abuse

‘Mental injury’ means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of his or her ability to function within his or her normal range of performance or behavior.

Abandonment

Citation: Rev. Stat. § 432B.140
‘Negligent treatment or maltreatment’ of a child occurs if a child has been abandoned.

Standards for Reporting

Citation: Rev. Stat. § 432B.220
A report is required when a mandatory reporter, in his or her professional or occupational capacity, knows or has reasonable cause to believe that a child has been abused or neglected.

Persons Responsible for the Child

The term ‘parent’ means a natural or adoptive parent whose parental rights have not been terminated.

The term ‘person responsible for a child’s welfare’ includes:

  • The child’s parent, guardian, or stepparent with whom the child lives
  • An adult person continually or regularly found in the same household as the child
  • A public or private home, institution, or facility in which the child actually resides or is receiving care outside of the home for all or a portion of the day
  • A person directly responsible or serving as a volunteer for or employed by such a home, institution, or facility
Exceptions

Relinquishment of a newborn in accordance with the law is not considered abuse or neglect.

It is not considered abuse or neglect when a parent or guardian, in good faith, selects and depends upon nonmedical remedial treatment for the child, if such treatment is recognized and permitted under the laws of the State in lieu of medical treatment. This paragraph does not limit the court in ensuring that a child receive a medical examination and treatment pursuant to § 62E.280.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ occurs when a person commits one of the following acts against or upon any person listed below:

  • Assault or battery
  • Compelling the other by force or threat of force to perform an act from which he or she has the right to refrain or to refrain from an act that he or she has the right to perform
  • Sexual assault
  • A knowing, purposeful, or reckless course of conduct intended to harass the other, including, but not limited to:
    • Stalking
    • Arson
    • Trespassing
    • Larceny
    • Destruction of private property
    • Carrying a concealed weapon without a permit
    • Injuring or killing an animal
    • False imprisonment
    • Unlawful entry into the other’s residence or forcible entry against the other’s will if there is a reasonably foreseeable risk of harm to the other from the person’s entry
Defined in Child Abuse Reporting and Child Protection Laws

A child may be in need of protection if the death of a parent of the child is or may be the result of an act by the other parent that constitutes domestic violence pursuant to § 33.018.

Defined in Criminal Laws

‘Domestic violence’ means:

  • The attempt to cause or the causing of bodily injury to a family or household member or the placing of the member in fear of imminent physical harm by threat of force
  • Any of the following acts committed by a person against a family or household member, a person with whom he or she had or is having a dating relationship or with whom he or she has a child in common, or upon his or her minor child or a minor child of that person:
    • Assault or battery
    • Compelling the other by force or threat of force to perform an act from which he or she has the right to refrain or to refrain from an act which he or she has the right to perform
    • Sexual assault
    • A knowing, purposeful, or reckless course of conduct intended to harass the other, including, without limitation:
      • Stalking
      • Arson
      • Trespassing
      • Larceny
      • Destruction of private property
      • Carrying a concealed weapon without a permit
      • False imprisonment
      • Unlawful entry into the other’s residence or forcible entry against the other’s will if there is a reasonably foreseeable risk of harm to the other person from the entry
Persons Included in the Definition

In civil law: The following persons are eligible for protection:

  • A spouse or former spouse
  • Any person related by blood or marriage
  • A person with whom the abuser is or was actually residing
  • Persons who have had or are having a dating relationship
  • Persons who have a child in common
  • The minor child of any of those persons
  • A minor child of the abuser or any person who has been appointed the custodian or legal guardian for his or her minor child

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

In criminal law: ‘Family or household member’ means:

  • A spouse or former spouse
  • A parent or other adult person who is related by blood or marriage or is or was actually residing with the person committing the act of domestic violence

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

‘Victim of domestic violence’ includes the dependent children of the victim.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Except as otherwise provided below, immunity from civil or criminal liability extends to every person who in good faith:

  • Makes a report pursuant to the reporting laws
  • Conducts an interview or allows an interview to be taken
  • Allows or takes photographs or x-rays
  • Causes a medical test to be performed
  • Provides a record, or a copy of a record, of a medical test to an agency that provides child welfare services to the child, a law enforcement agency that participated in the investigation of the report made pursuant to § 432B. 220, or the prosecuting attorney’s office
  • Holds a child pursuant to § 432B.400 [pertaining to the temporary detention of a child by a physician], takes possession of a child pursuant to § 432B.630 [pertaining to the delivery of a newborn child to a provider of emergency services], or places a child in protective custody
  • Performs any act pursuant to § 432B.630(2)
  • Refers a case or recommends the filing of a petition pursuant to § 432B.380 [pertaining to the referral of a case to a district attorney for criminal prosecution]
  • Participates in a judicial proceeding resulting from a referral or recommendation

The provisions above do not confer any immunity from liability for the negligent performance of any act pursuant to § 432B.630.

In any proceeding to impose liability against a person for making a report pursuant to the reporting laws or performing any of the actions listed above, there is a presumption that a person acted in good faith.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who, in his or her professional or occupational capacity, knows or has reasonable cause to believe that a child has been abused or neglected shall make a report as soon as reasonably practicable but no later than 24 hours after the person knows or has reasonable cause to believe that the child has been abused or neglected.

A person may make a report by telephone or, in light of all the surrounding facts and circumstances that are known or that reasonably should be known to the person at the time, by any other means of oral, written, or electronic communication that a reasonable person would believe, under those facts and circumstances, is a reliable and swift means of communicating information to the person who receives the report. If the report is made orally, the person who receives the report must reduce it to writing as soon as reasonably practicable.

Content of Reports

The report must contain the following information, if obtainable:

  • The name, address, age, and sex of the child
  • The name and address of the child’s parents or other person responsible for the child’s care
  • The nature and extent of the abuse or neglect of the child, the effect of prenatal illegal substance abuse on the newborn infant, or the nature of the withdrawal symptoms resulting from prenatal drug exposure
  • Any evidence of previously known or suspected abuse or neglect of the child or the child’s siblings, effects of prenatal illegal substance abuse, or evidence of withdrawal symptoms resulting from prenatal drug exposure of the newborn infant
  • The name, address, and relationship, if known, of the person who is alleged to have abused or neglected the child
  • Any other information known to the person making the report that the agency that provides child welfare services considers necessary
Reporting Suspicious Deaths

If a mandated reporter knows or has reasonable cause to believe that a child has died as a result of abuse or neglect, the person shall, as soon as reasonably practicable, report this belief to an agency that provides child welfare services or a law enforcement agency. If the report is made to a law enforcement agency, the law enforcement agency shall notify an agency that provides child welfare services and the appropriate medical examiner or coroner of the report. If such a report is made to an agency that provides child welfare services, the agency shall notify the appropriate medical examiner or coroner of the report.

The medical examiner or coroner shall investigate the report and submit his or her written findings to the appropriate child welfare agency, the appropriate district attorney, and a law enforcement agency. The written findings must include, if obtainable, the information required by § 432B.230(2).

Reporting Substance-Exposed Infants

Any mandated reporter who delivers or provides medical services to a newborn infant and knows or has reasonable cause to believe that the newborn infant has been affected by prenatal substance abuse or has withdrawal symptoms resulting from prenatal drug exposure shall, as soon as reasonably practicable but no later than 24 hours after the person knows, notify an agency that provides child welfare services of the condition of the infant and refer each person who is responsible for the welfare of the infant for appropriate counseling, training, or other services.

Agency Receiving the Reports

A mandated reporter shall make his or her report of abuse or neglect of the child to an agency that provides child welfare services or to a law enforcement agency.

If a mandated reporter knows or has reasonable cause to believe that the abuse or neglect of the child involves an act or omission of a person directly responsible or serving as a volunteer for or an employee of a public or private home, institution, or facility where the child is receiving child care outside of his or her home for a portion of the day, the person shall make the report to a law enforcement agency.

If a mandated reporter knows or has reasonable cause to believe that the abuse or neglect of the child involves an act or omission of an agency that provides child welfare services or a law enforcement agency, the person shall make the report to an agency other than the one alleged to have committed the act or omission.

Initial Screening Decisions

When an agency that provides protective services receives a referral that a child is alleged to be abused, neglected, or threatened with harm, its first step must be to obtain sufficient information to decide if the allegations constitute a report of the abuse or neglect of a child that is appropriate for investigation. The worker shall explore the nature of the reporter’s concern, evaluate the report, and explain the agency’s responsibility and services and the available resources that could be used.

Agency Conducting the Assessment/Investigation

Upon the receipt of a report concerning the possible abuse or neglect of a child, a child welfare agency or a law enforcement agency shall promptly notify the appropriate licensing authority, if any. A law enforcement agency shall promptly notify a child welfare agency of any report it receives.

An agency that provides child welfare services and a law enforcement agency shall cooperate in the investigation, if any, of a report of abuse or neglect of a child.

Assessment/Investigation Procedures

If the child welfare agency investigates a report of alleged child abuse or neglect, the agency shall inform the person responsible for the child’s welfare who is named in the report as allegedly causing the abuse or neglect of any allegation at the initial time of contact with the person. The agency shall not identify the person responsible for making the report.

If the agency determines that an investigation is not warranted, the agency may, as appropriate:

  • Provide counseling, training, or other services relating to child abuse and neglect to the family of the child
  • Conduct an assessment of the family to determine what services, if any, are needed

The agency that determines that an investigation is not warranted may, at any time, reverse that determination and initiate an investigation.

Except for reports that are assigned for assessment, the agency shall investigate each report of abuse or neglect received or referred to it to determine:

  • The composition of the family, including any siblings or other children and any other adult living or working in the same household or facility
  • Whether there is reasonable cause to believe any child is abused or neglected or threatened with abuse or neglect; the nature and extent of existing or previous injuries, abuse, or neglect; and the person apparently responsible
  • Whether there is reasonable cause to believe that a child has suffered a fatality as a result of abuse or neglect
  • If there is reasonable cause to believe that a child is abused or neglected and the immediate and long-term risk to the child if the child remains in the same environment
  • The treatment and services that would help prevent further abuse or neglect and to improve the environment of the child and the ability of the person responsible for the child’s welfare to care adequately for the child
Timeframes for Completing Investigations

Upon receipt of a report concerning the possible abuse or neglect of a child, a child welfare agency or a law enforcement agency shall immediately initiate an investigation if the report indicates that:

  • The child is age 5 or younger.
  • There is a high risk of serious harm to the child.
  • The child has suffered a fatality.
  • The child is living in a household in which another child has died or the child is seriously injured or has visible signs of physical abuse.

In other cases, a child welfare agency shall conduct an evaluation no later than 3 days after the report or notification was received to determine whether an investigation is warranted. For the purposes of this subsection, an investigation is not warranted if:

  • The child is not in imminent danger of harm.
  • The child is not vulnerable as the result of any untreated injury, illness, or other physical, mental, or emotional condition that threatens his or her immediate health or safety.
  • The alleged abuse or neglect could be eliminated if the child and his or her family receive or participate in social or health services offered in the community, or both.
  • The agency determines that the alleged abuse or neglect was the result of the reasonable exercise of discipline by a parent or guardian.

If the agency determines that an investigation is warranted, the agency shall initiate the investigation no later than 3 days after the evaluation is completed.

Classification of Reports

After the investigation of a report of the abuse or neglect of a child, an agency that provides child welfare services shall determine its case findings based on whether there is reasonable cause to believe a child is abused or neglected or threatened with abuse or neglect and whether there is credible evidence of alleged abuse or neglect of the child. The agency shall make one of the following findings:

  • The allegation of abuse or neglect is substantiated.
  • The allegation of abuse or neglect is unsubstantiated.

As used in this section:

  • ‘Substantiated’ means that a report was investigated and that credible evidence of the abuse or neglect exists.
  • ‘Unsubstantiated’ means that a report was investigated and that no credible evidence of the abuse or neglect exists.

Parental Drug Use as Child Abuse

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Current Through April 2015

Any person who is a mandated reporter who delivers or provides medical services to a newborn infant and who, in his or her professional or occupational capacity, knows or has reasonable cause to believe that the newborn infant has been affected by prenatal illegal substance abuse or has withdrawal symptoms resulting from prenatal drug exposure shall, as soon as reasonably practicable but not later than 24 hours after the person knows or has reasonable cause to believe that the newborn infant is so affected or has such symptoms, notify an agency that provides child welfare services of the condition of the infant and refer each person who is responsible for the welfare of the infant to an agency that provides child welfare services for appropriate counseling, training, or other services. A notification and referral to an agency that provides child welfare services shall not be construed to require prosecution for any illegal action.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

After a petition is filed that a child is in need of protection pursuant to § 432B.490, the court shall appoint a guardian ad litem (GAL) for the child.

The child may be represented by an attorney at all stages of any proceedings held pursuant to §§ 432B.410 to 432B.590, inclusive. If the child is represented by an attorney, the attorney has the same authority and rights as an attorney representing a party to the proceedings.

If the court determines that the parent of an Indian child for whom protective custody is sought is indigent, the court:

  • Shall appoint an attorney to represent the parent
  • May appoint an attorney to represent the Indian child
  • May apply to the Secretary of the Interior for the payment of the fees and expenses of such an attorney, as provided in the Indian Child Welfare Act
The Use of Court-Appointed Special Advocates (CASAs)

To qualify for appointment as a GAL in a judicial district that does not include a county whose population is less than 100,000, a special advocate must be qualified pursuant to the standards for training of the National Court Appointed Special Advocate Association or its successor. If such an association ceases to exist, the court shall determine the standards for training.

Qualifications/Training

The person appointed as a GAL:

  • Must meet the requirements of § 432B.505 or, if such a person is not available, a representative of an agency that provides child welfare services, a juvenile probation officer, an officer of the court, or another volunteer
  • Must not be a parent or other person responsible for the child’s welfare

To qualify for appointment as a GAL in a judicial district that includes a county whose population is less than 100,000, a special advocate must be a volunteer from the community who completes an initial 12 hours of specialized training and, annually thereafter, completes 6 hours of specialized training. The training must be approved by the court and include information regarding:

  • The dynamics of abuse and neglect of children
  • Factors to consider in determining the best interests of a child, including planning for the permanent placement of the child
  • The interrelationships of the family system, legal process, and child welfare system
  • Skills in mediation and negotiation
  • Federal, State, and local laws affecting children
  • Cultural, ethnic, and gender-specific issues
  • Domestic violence
  • Resources and services available in the community for children in need of protection
  • Child development
  • Standards for GALs
  • Confidentiality issues
  • Other topics the court deems appropriate
Specific Duties

A GAL appointed pursuant to this section shall:

  • Represent and protect the best interests of the child until excused by the court
  • Thoroughly research and ascertain the relevant facts of each case for which he or she is appointed, and ensure that the court receives an independent, objective account of those facts
  • Meet with the child wherever the child is placed as often as necessary to determine that the child is safe and to ascertain the best interests of the child
  • Explain to the child the role of the GAL and, when appropriate, the nature and purpose of each proceeding in his or her case
  • Participate in the development and negotiation of any plans for and orders regarding the child, and monitor the implementation of those plans and orders to determine whether services are being provided in an appropriate and timely manner
  • Appear at all proceedings regarding the child
  • Inform the court of the desires of the child, but exercise his or her independent judgment regarding the best interests of the child
  • Present recommendations to the court and provide reasons in support of those recommendations
  • Request the court to enter orders that are clear and specific, and, when appropriate, include periods for compliance
  • Review the progress of each case for which he or she is appointed, and advocate for the expedient completion of the case
  • Perform other duties the court orders
How the Representative Is Compensated

No compensation may be allowed a person serving as a GAL.

Each attorney, other than a public defender, who is appointed to represent a child, is entitled to the same compensation and payment for expenses from the county as provided in §§ 7.125 and 7.135 for an attorney appointed to represent a person charged with a crime. Except as otherwise provided in § 432B.500, an attorney appointed to represent a child may also be appointed as the GAL for the child. He or she may not receive any compensation for his or her services as a GAL.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

If the agency that provides child welfare services believes that it is necessary to remove the child from the physical custody of his or her parents, it must submit [to the court] a plan designed to achieve a placement of the child in a safe setting as near to the residence of his or her parent as is consistent with the best interests and special needs of the child.

In regulation: The agency that provides child welfare services shall develop a written case plan for a child within 45 days after the date on which the child is removed from his or her home.

Who May Participate in the Case Planning Process

The case plan must:

  • If possible, be developed jointly with a parent or guardian of the child who is receiving foster care
  • Be developed with input from the child if the agency that provides child welfare services determines it is appropriate, based on the age and stage of development of the child
  • Be developed with input from the foster parent caring for the child
Contents of a Case Plan

The plan must include, without limitation:

  • A description of the type, safety, and appropriateness of the home or institution in which the child could be placed; a plan for ensuring that the child would receive safe and proper care; and a description of his or her needs
  • A description of the services to be provided to the child and to a parent to facilitate the return of the child to the custody of his or her parent or to ensure his or her permanent placement
  • The appropriateness of the services to be provided under the plan
  • A description of how the order of the court will be carried out

In regulation: The case plan must include:

  • The long-term goals of the plan, including reunification of the child and his or her family, or permanent placement of the child with a relative, for adoption, into a legal guardianship, or into another permanent independent living arrangement
  • A projected time by which these goals should be achieved
  • A description of the current strengths of the family and the needs that must be satisfied to achieve these goals
  • A description of the services offered or provided to prevent removal of the child from his or her home and to reunify the family of the child
  • A description of the type of home or institution in which the child is placed
  • A description of the safety and appropriateness of the placement to ensure that the child receives proper care
  • A description of how the agency will ensure that services are provided to the child and the foster parents that address the needs of the child while in foster care, including the appropriateness of services that have been provided pursuant to the case plan
  • A description, as applicable, of the programs and services that will assist a child in foster care who is age 16 or older prepare for the transition from foster care to independent living
  • If the goal of the case plan is adoption or placement in another permanent home, a description of the steps that will be taken to finalize the adoption or placement
  • A description of the manner in which a placement will be made and the reasons that such a placement will be in the best interests of the child, with particular consideration given to a placement that is safe and in the least restrictive familial environment available
  • If the goal of the case plan is reunification of the family, a description of how particular consideration will be given to a placement for the child that is in close proximity to the home of the parent of the child
  • If the child will be placed in a family foster home or institution for child care that is located a substantial distance from or in a different State than where the family of the child resides, the reasons that such a placement will be in the best interests of the child
  • If a child is placed in a family foster home or institution for child care that is located in a different State than where the parents of the child reside, a description of the frequency with which a caseworker from an agency that provides child welfare services and that is located in the State where the child is placed or the State where the parents reside will visit the foster home or institution and submit a report to the agency that provides child welfare services in the State where the parents reside
  • A description of the efforts that will be made to place siblings together
  • A plan for family visitation, including, without limitation, visiting siblings if the siblings are not residing together
  • A statement indicating that the proximity of the school in which the child was enrolled at the time that he or she was placed in foster care was considered as a factor in the selection of the placement for foster care
  • The health and education records of the child to the extent those records are available, including:
    • The names and addresses of the providers of health care and education of the child
    • The grade level at which the child performs
    • Documentation of the child’s immunizations, any known medical or psychological problems, and any prescribed medications
    • Any other health or educational information concerning the child as the agency that provides child welfare services determines is necessary

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

Placement of the child in foster care must be reviewed at least semiannually.

A permanency hearing must be held:

  • No later than 12 months after initial removal of the child from the home 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:

  • All the parties to any of the prior proceedings
  • Any person planning to adopt the child
  • A sibling of the child, if known, who has been granted a right of visitation with the child
  • Any other relatives of the child or providers of foster care who are currently providing care to the child
  • The child, if his or her presence is requested by the court

The provision of notice and a right to be heard to this section does not make any person planning to adopt the child, any sibling of the child, any other relative, any adoptive parent of a sibling of the child, or a provider of foster care a party to the hearing.

Determinations Made at Hearings

The review hearing shall address:

  • The continuing necessity for and appropriateness of the placement
  • The extent of compliance with the case plan
  • Any progress being made toward alleviating the problem that resulted in the placement of the child
  • The date the child may be returned home or placed for adoption or a legal guardianship

At the permanency hearing, the court shall review any plan for the permanent placement of the child and, if the goal of the plan is a permanent living arrangement other than reunification with his or her parents, placement for adoption, placement with a legal guardian, or placement with a relative, ask the child about his or her desired permanent living arrangement. After doing so, the court must determine:

  • Whether the agency with legal custody of the child has made the reasonable efforts required by § 432B.553(1)
  • Whether, and if applicable when:
    • The child should be returned to the parents of the child or placed with other relatives.
    • It is in the best interests of the child to initiate proceedings to establish another permanent placement.
  • Whether the agency with legal custody of the child has produced documentation of its conclusion that there is a compelling reason for the placement of a child who has reached age 16 in another permanent living arrangement
  • If the child will not be returned to his or her parents, whether the agency with legal custody of the child fully considered placement options both within and outside of this State
  • If the child has reached age 14, whether the child will receive the services needed to assist the child in transitioning to Independent Living
  • If the child has been placed outside of the State, whether that placement continues to be appropriate for and in the best interests of the child
Permanency Options

Permanency options include:

  • Return to the parent
  • Placement with other relatives
  • Adoption
  • Guardianship
  • For a child who is age 16 or older, another permanent living arrangement when there is documentation of compelling reasons why a more permanent option is not in the child’s best interests

Determining the Best Interests of the Child

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Current Through March 2016

The legislature declares that the preservation and strengthening of family life is a part of the public policy of this State. The legislature finds that:

  • Severance of the parent and child relationship is a matter of such importance in order to safeguard the rights of parent and child as to require judicial determination.
  • Judicial selection of the person or agency to be entrusted with the custody and control of a child after such severance promotes the welfare of the parties and of this State.
  • The continuing needs of a child for proper physical, mental, and emotional growth and development are the decisive considerations in proceedings for termination of parental rights.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The primary consideration in any proceeding to terminate parental rights must be whether the best interests of the child will be served by the termination. The grounds for termination of parental rights include:

  • A finding that reasonable efforts to reunite the child with the parent are not required because the parent has:
    • Committed, aided, or abetted in the commission of, or attempted, conspired, or solicited to commit murder or voluntary manslaughter
    • Caused the abuse or neglect of a child that resulted in substantial bodily harm
    • Caused abuse or neglect that was so extreme or repetitious that any plan to return the child home would result in an unacceptable risk to the health or welfare of the child
    • Abandoned the child for 60 or more days
    • Failed to contact or communicate with the child
    • Had his or her parental rights to another child terminated by a court order upon any basis other than the execution of a voluntary relinquishment
    • Had a child who had been previously removed from the home, returned home, and subsequently removed as a result of additional abuse or neglect
    • Failed to established his paternity
    • Had the child delivered to a provider of emergency services pursuant to § 432B.630
  • A finding that the parent has demonstrated at least one of the following:
    • Abandonment or neglect of the child
    • Unfitness as a parent
    • Failure of parental adjustment
    • Risk of serious physical, mental, or emotional injury to the child if he or she were returned to, or remains in, the home of the parent
    • Only token efforts by the parent to support or communicate with the child, to prevent neglect of the child, or to eliminate the risk of serious physical, mental, or emotional injury to the child

In determining neglect by or unfitness of a parent, the court shall consider, without limitation, the following conditions that may diminish suitability as a parent:

  • Emotional illness, mental illness, or mental deficiency
  • Conduct toward a child of a physically, emotionally, or sexually cruel or abusive nature
  • Excessive use of intoxicating liquors, controlled substances, or dangerous drugs
  • Repeated or continuous failure by the parent, although physically and financially able, to provide the child with adequate food, clothing, shelter, education, or other care
  • Conviction of the parent for commission of a felony that indicates the unfitness
  • Unexplained injury or death of a sibling of the child
  • Inability of appropriate public or private agencies to reunite the family despite reasonable efforts on the part of the agencies
Circumstances That Are Exceptions to Termination of Parental Rights

If a child is not in the physical custody of the parent or parents, the court, in determining whether parental rights should be terminated, shall consider, without limitation:

  • The services provided or offered to the parents to facilitate a reunion with the child
  • The physical, mental, or emotional condition, the needs of the child, and the child’s desires regarding the termination, if the court determines the child is of sufficient capacity to express his or her desires
  • The effort the parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interests to return the child to his or her home after a reasonable length of time, including, but not limited to:
    • The payment of a reasonable portion of substitute physical care and maintenance, if financially able
    • The maintenance of regular visitation or other contact with the child that was designed and carried out in a plan to reunite the child with the parents
    • The maintenance of regular contact and communication with the custodian of the child
  • Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parents within a predictable period

For purposes of this section, the court shall disregard incidental conduct, contributions, contacts, and communications.

Circumstances Allowing Reinstatement of Parental Rights

A child who has not been adopted and whose natural parents have had their parental rights terminated or have relinquished their parental rights, or the legal custodian or guardian of such a child, may petition a court for the restoration of the parental rights of the natural parents of the child. The natural parents for whom restoration of parental rights is sought to be restored must consent in writing to the petition.

If a valid petition is filed, the court shall hold a hearing to determine whether to restore the parental rights of the natural parent or parents. Before granting a petition for the restoration of parental rights, the court must find that:

  • If any child who is the subject of the petition is age 14 or older, the child consents to the restoration of parental rights.
  • The natural parents for whom restoration of parental rights is sought have been informed of the legal obligations, rights, and consequences of the restoration of parental rights and the natural parents are willing and able to accept such obligations, rights, and consequences.

If the court finds the necessary facts, the court shall order the restoration of parental rights if the court further finds by a preponderance of the evidence that:

  • The child is not likely to be adopted.
  • Restoration of parental rights of the natural parent or parents is in the best interests of the child.

If the court restores the parental rights of the natural parents of a child who is younger than age 14, the court shall specify in its order the factual basis for its findings that it is in the best interests of the child to restore the parental rights of the natural parents.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A child who is or appears to be no more than 30 days old may be surrendered.

Who May Relinquish the Infant

A parent of the child may voluntarily deliver the child to an emergency services provider.

The parent shall leave the child:

  • In the physical possession of a person who the parent has reasonable cause to believe is an employee of the provider
  • On the property of the provider in a manner and location that the parent has reasonable cause to believe will not threaten the physical health or safety of the child and shall immediately contact the provider, through the local emergency telephone number or otherwise, and inform the provider of the delivery and location of the child
Who May Receive the Infant

A provider of emergency services shall take immediate possession of a surrendered child. The term ‘provider of emergency services’ includes:

  • A hospital, an obstetric center, or an independent center for emergency medical care
  • A public firefighting agency
  • A law enforcement agency
Responsibilities of the Safe Haven Provider

A provider of emergency services who takes possession of a child shall perform any act necessary to maintain and protect the physical health and safety of the child. If the provider is a public firefighting agency or a law enforcement agency, the provider shall immediately arrange the safe delivery of the child to a hospital, an obstetric center, or an independent center for emergency medical care.

As soon as reasonably practicable but no later than 24 hours after the provider takes possession of the child, the provider shall report that possession to an agency that provides child welfare services and, if the provider is not a law enforcement agency, to a law enforcement agency. The law enforcement agency shall notify the clearinghouse of missing and exploited children and investigate further, if necessary, using any other resources to determine whether the child has been reported as a missing child. Upon conclusion of the investigation, the law enforcement agency shall inform the agency that provides child welfare services of its determination. The agency that provides child welfare services shall maintain that information for statistical and research purposes.

A parent who delivers a child to a provider of emergency services shall be deemed to have given consent to the performance of all necessary emergency services and care for the child.

Immunity for the Provider

A provider of emergency services is not liable for any civil damages as a result of any harm or injury sustained by a child after the child is left on the property of the provider and before the provider is informed of the delivery and location of the child or the provider takes physical possession of the child, whichever occurs first.

Protection for Relinquishing Parent

A parent who surrenders a child:

  • Must not be required to provide any background or medical information regarding the child but may do so voluntarily
  • Unless there is reasonable cause to believe that the child has been abused or neglected, excluding the mere fact that the parent has surrendered the child:
    • Must not be required to disclose any identifying information but may do so voluntarily
    • Must be allowed to leave at any time
    • Must not be pursued or followed

A person does not commit abuse, neglect, or endangerment of a child by virtue of the sole fact that he or she delivers or allows the delivery of a child to a provider of emergency services.

A person does not commit contributory neglect of a child by virtue of the sole fact that he or she delivers or induces the delivery of a child to a provider of emergency services.

Effect on Parental Rights

A provider of emergency services who takes possession of a child shall, whenever possible, inform the parent of the child that:

  • By allowing the provider to take possession of the child, the parent is presumed to have abandoned the child.
  • By failing or refusing to provide an address where the parent can be located, the parent waives any notice of the [protective custody] hearing to be conducted pursuant to § 432B.470.
  • Unless the parent contacts the local agency that provides child welfare services, action will be taken to terminate his or her parental rights regarding the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

As used in this section, unless the context otherwise requires, ‘qualifying relative’ means a person specified in title 45, § 233.90(c)(1)(v)(A) of the Code of Federal Regulation.

Purpose of Guardianship

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

A Guardian’s Rights and Responsibilities

Except as otherwise ordered by the court, a guardian of the child has the care, custody, and control of the child, and has the authority and shall perform the duties necessary for the proper care, maintenance, education, and support of the child, including, without limitation, the following:

  • Supplying the child with food, clothing, shelter, and all incidental necessaries, including providing an appropriate residence for the child
  • Authorizing medical, surgical, dental, psychiatric, psychological, hygienic, or other remedial care and treatment for the child
  • Seeing that the child is properly trained and educated and that the child has the opportunity to learn a trade, occupation, or profession
Qualifying the Guardian

Any qualified person that the court finds suitable may serve as a guardian. A person is not qualified to serve as a guardian who:

  • Is an incompetent or a minor
  • Has been convicted of a felony, unless the court determines that such conviction should not disqualify the person from serving as the guardian of the ward
  • Has been suspended for misconduct or disbarred from the practice of law, accounting, or any other profession that involves the management or sale of money, investments, securities, or real property
  • Has been judicially determined, by clear and convincing evidence, to have committed abuse, neglect, or exploitation of a child, spouse, parent, or other adult, unless the court finds that it is in the best interests of the ward to appoint the person as guardian

Before entering into an agreement for guardianship assistance, an agency that provides child welfare services shall obtain from appropriate law enforcement agencies information on the background and personal history of each relative of a child who seeks assistance, and each resident of the home of such relative who is age 18 or older, to determine whether the person investigated has been arrested for or convicted of any crime.

The relative and each resident of the relative’s home must a complete set of fingerprints and provide written permission authorizing checks of State and Federal criminal records and a child abuse and neglect records screening.

Procedures for Establishing Guardianship

If the permanency plan for a child includes a request for the appointment of a guardian for the child, a governmental agency, a nonprofit corporation, or any interested person, including, without limitation, the agency that adopted the plan, may petition the court for the appointment of a guardian. A petition for the appointment of a guardian pursuant to this section:

  • May not be filed before the court has determined that the child is in need of protection
  • Must include the information required for a guardianship petition pursuant to § 159.044
  • Must include a statement explaining why the appointment of a guardian, rather than the adoption of the child or the return of the child to a parent, is in the best interests of the child

The court may, upon the filing of a petition, appoint a person as a guardian for a child if:

  • The court finds:
    • That the proposed guardian is suitable and is not disqualified from guardianship pursuant to § 159.059
    • That the child has been in the custody of the proposed guardian for 6 months or more pursuant to a determination by a court that the child was in need of protection, unless the court waives this requirement for good cause shown
  • If the child is age 14 or older, the child consents to the guardianship.
  • The court determines that the requirements for filing a petition have been satisfied.
Contents of a Guardianship Order

A guardianship established pursuant to this section:

  • Provides the guardian with sole legal and physical custody of the child
  • Does not result in the termination of parental rights of a parent of the child
  • Does not affect any rights of the child to inheritance, a succession, or any services or benefits provided by the Federal Government, this State, or an agency or political subdivision of this State.

If a court appoints a guardian for a child pursuant to § 432B.4665, the court may order a reasonable right of visitation to any person whose right to custody or visitation of the child was terminated as a result of the appointment of the guardian if the court finds that the visitation is in the best interests of the child.

Modification/Revocation of Guardianship

The court shall retain jurisdiction to enforce, modify, or terminate a guardianship until the child reaches age 18.

Any person having a direct interest in a guardianship established pursuant to § 432B.4665 may petition the court to enforce, modify, or terminate an order concerning the guardianship. The court shall issue an order directing the appropriate agency that provides child welfare services to file a report and to make a recommendation in response to any motion to enforce, modify, or terminate an order concerning a guardianship established pursuant to § 432B.4665. The agency must submit the report to the court within 45 days after receiving the order of the court. Any motion to enforce, modify, or terminate an order concerning a guardianship established pursuant to § 432B.4665 must comply with the provisions set forth in chapter 159 for motions to enforce, modify, or terminate orders concerning guardianships.

A successor guardian may be appointed in accordance with the procedures set forth in chapter 159.

Eligibility for Guardianship Subsidy

The department shall establish a program to provide supportive assistance to qualifying relatives of children who provide care for and obtain the legal guardianship of those children. As a condition to the provision of assistance pursuant to this section, the child must:

  • Have been placed in the care of a qualifying relative for not less than 6 months
  • Consent to the guardianship if the child is age 14 or older

The qualifying relative must:

  • Reside in the State
  • Have attained the minimum age required by regulation
  • Verify his or her relationship to the child
  • File for and obtain court approval of the legal guardianship

The department shall establish and administer the Kinship Guardianship Assistance Program to provide assistance to a relative of a child. As a condition to the provision of assistance, a child must:

  • Have been removed from his or her home pursuant to a written voluntary agreement or by court order
  • For not less than 6 consecutive months, have been eligible to receive title IV-E maintenance while residing with the relative of the child
  • Not have returning home or adoption as options for permanent placement
  • Demonstrate a strong attachment to the relative
  • If the child is age 14 or older, be consulted regarding the guardianship arrangement

A relative of the child must:

  • Demonstrate a strong commitment to caring for the child permanently
  • Be a foster care provider
  • Enter into a written agreement for assistance with the child welfare agency before the relative is appointed as the legal guardian of the child
  • Be appointed as the legal guardian of the child

If the sibling of an eligible child is not eligible for such assistance, the sibling may be placed with the eligible child upon approval of the child welfare agency and the relative. In such a case, payments may be made for the sibling as if the sibling is eligible for the program.

Links to Agency Policies

Nevada Division of Child and Family Services, Statewide Policy Manual, Policy # 1003, Kinship Care (PDF – 63 KB)

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

If the child is placed in the custody and control of a person or agency qualified by the laws of this State to receive children for placement, the person or agency, in seeking to place the child may give preference to the placement of the child with any person related within the fifth degree of consanguinity to the child whom the person or agency finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State. Any search for a relative with whom to place a child pursuant to this subsection must be completed within 1 year after the initial placement of the child outside of his or her home.

In determining the placement of a child, if the child is not permitted to remain in the custody of the parents or guardian of the child, preference must be given to placing the child in the following order:

  • With any person who is related within the fifth degree of consanguinity to the child or a fictive kin, and who is suitable and able to provide proper care and guidance for the child, regardless of whether the relative or fictive kin resides within this State
  • In a licensed foster home

As used in this section, the term ‘fictive kin’ means a person who is not related by blood to a child but who has a significant emotional and positive relationship with the child.

Requirements for Placement with Relatives

The agency must determine whether the relative is suitable and able to provide proper care and guidance for the child.

The department shall establish and administer a program to provide supportive assistance to qualifying relatives of children who provide care for and obtain the legal guardianship of those children. As a condition to the provision of any supportive assistance pursuant to this section:

  • The child must:
    • Have been placed in the care of his or her qualifying relative for not less than 6 months
    • If he or she is age 14 or older, consent to the legal guardianship
  • The qualifying relative must:
    • Reside in this State
    • Have attained the minimum age specified in department regulation
    • Verify his or her relationship to the child
    • File for and obtain court approval of the legal guardianship and comply with any requirements imposed by the court

The supportive assistance must include, within the limitations of available funding:

  • Reimbursement of all or a portion of the legal fees incurred by the qualifying relative to establish the legal guardianship
  • Payments of not more than the amount that the department would provide to a foster parent if the child had been placed in foster care
  • Assistance with child care, respite care, and transportation
  • Any other assistance the department deems appropriate
Requirements for Placement of Siblings

A child-placing agency shall, to the extent practicable, give preference to the placement of a child for adoption or permanent guardianship together with his or her siblings.

If the child is placed in the custody and control of a person or agency qualified by the laws of this State to receive children for placement, the person or agency, in seeking to place the child shall give preference to the placement of the child together with his or her siblings, if practicable.

Whenever possible, a child placed in protective custody must be placed together with any siblings of the child.

In determining the placement of a child pursuant to this section, if the child is not permitted to remain in the custody of the parents of the child or guardian, it must be presumed to be in the best interests of the child to be placed together with the siblings of the child.

Relatives Who May Adopt

A relative is a person related to the child through blood, marriage, or adoption within the third degree of relation.

Requirements for Adoption by Relatives

If one petitioner or the spouse of a petitioner is related to the child within the third degree of relation, the court may, at its discretion, waive the preplacement investigation by the agency that provides child welfare services.

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

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Current Through March 2016

What Are Reasonable Efforts

For the purposes of this section, ‘reasonable efforts’ have been made if an agency that provides child welfare services that has legal custody of a child has exercised diligence and care in arranging appropriate, accessible, and available services that are designed to improve the ability of a family to provide a safe and stable home for each child in the family, with the health and safety of the child as its paramount concerns. An agency may satisfy the requirement of making reasonable efforts pursuant to this section by taking no action concerning a child or making no effort to provide services to a child if it is reasonable, under the circumstances, to do so.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • Before placement of the child in foster care to prevent or eliminate the need for removal from the home
  • To make it possible to return home safely
  • If continuation of reasonable efforts is determined to be inconsistent with the permanency plan, to place the child in a timely manner, and to finalize a permanent placement
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if the court finds that:

  • A parent or other person responsible for the child’s welfare has:
    • Committed, aided, or abetted in the commission of, or attempted, conspired, or solicited to commit murder or voluntary manslaughter
    • Caused the abuse or neglect of the child, which resulted in substantial bodily harm to the child
    • Caused the abuse or neglect of the child, and the abuse or neglect was so extreme or repetitious that returning the child to the home would result in an unacceptable risk to the child’s health or welfare
    • Abandoned the child for 60 or more days, and the identity of the parent is unknown
  • A parent of the child has, for the previous 6 months, had the ability to contact or communicate with the child and made no more than token efforts to do so.
  • The parental rights of a parent to another child have been terminated involuntarily by a court order, and the court order is not currently being appealed.
  • The child or a sibling of the child was previously removed from the home due to abuse or neglect, returned to the home, and subsequently removed from the home as a result of additional abuse or neglect.
  • The child is less than age 1, the father of the child is not married to the child’s mother, and the father:
    • Has failed within 60 days after learning of the birth of the child, to visit the child, to commence proceedings to establish his paternity of the child, or to provide financial support for the child
    • Is entitled to seek custody of the child, but fails to do so within 60 days after learning that the child was placed in foster care
  • The child was delivered to a provider of emergency services.
  • The child or another child in the household has been sexually abused or has been subjected to neglect by pervasive instances of failure to protect the child from sexual abuse.
  • A parent of the child is required to register as a sex offender.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent may appoint a short-term guardian for the child.

How to Establish a Standby Guardian

Except as otherwise provided in this section or § 127.045, a parent, without the approval of a court, may appoint in writing a short-term guardianship for an unmarried minor child if the parent has legal custody of the minor child.

The appointment of a short-term guardianship is effective for a minor who is age 14 or older only if the minor provides written consent to the guardianship.

How Standby Authority is Activated

The written instrument appointing a short-term guardian becomes effective immediately upon execution and must include, without limitation:

  • The date on which the guardian is appointed
  • The names of the parent who appointed the guardian, the minor child for whom the guardian is appointed, and the person who is appointed as the guardian
  • The signature of the parent and the guardian in the presence of a notary public acknowledging the appointment of the guardian

The short-term guardian serves as guardian for 6 months, unless the written instrument appointing the guardian specifies a shorter term or specifies that the guardianship is to terminate upon the happening of an event that occurs sooner than 6 months.

Only one written instrument appointing a short-term guardian may be effective at any given time.

Involvement of the Noncustodial Parent

Citation: Rev. Stat. § 159.205
The appointment of a short-term guardian does not affect the rights of the other parent of the minor.

A parent shall not appoint a short-term guardian for a minor child if the minor child has another parent:

  • Whose parental rights have not been terminated
  • Whose whereabouts are known
  • Who is willing and able to make and carry out daily child care decisions concerning the minor
  • Who has not given written consent to the appointment
Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

The appointment of a short-term guardian:

  • May be terminated by an instrument in writing signed by either parent, if that parent has not been deprived of the legal custody of the minor
  • Can be terminated by any order of a court of competent jurisdiction

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

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9th Circuit

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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

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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.

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CPS Statutes

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

 

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

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

1st Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

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

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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

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7th Circuit

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

8th Circuit

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US Supreme Court

CPS Statutes

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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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.  

 

 

1st Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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