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

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

New Hampshire

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused child’ means any child who has been:

  • Sexually abused
  • Intentionally physically injured
  • Physically injured by other than accidental means
Neglect

‘Neglected child’ means a child:

  • Who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health, when it is established that his or her health has suffered or is very likely to suffer serious impairment, and the deprivation is not due primarily to the lack of financial means of the parents, guardian, or custodian
  • Whose parents, guardian, or custodian are unable to discharge their responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity
Sexual Abuse/Exploitation

‘Sexual abuse’ means:

  • The employment, use, persuasion, inducement, enticement, or coercion of any child to engage in or having a child assist any other person to engage in any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct
  • The rape, molestation, prostitution, or other form of sexual exploitation of children
  • Incest with children

With respect to the definition of sexual abuse, the term ‘child’ or ‘children’ means any individual who is younger than age 18.

Emotional Abuse

The term ‘abused child’ includes any child who has been psychologically injured so that the child exhibits symptoms of emotional problems generally recognized to result from consistent mistreatment or neglect.

Abandonment

Citation: Rev. Stat. § 169-C:3
‘Abandoned’ means the child has been left by his or her parent, guardian, or custodian without provision for his or her care, supervision, or financial support, although his or her parent, guardian, or custodian is financially able to provide such support.

Standards for Reporting

Citation: Rev. Stat. § 169-C:29
A report is required when a mandatory reporter has reason to suspect that a child has been abused or neglected.

Persons Responsible for the Child

‘A person responsible for a child’s welfare’ includes the child’s parent, guardian, or custodian, as well as the person providing out-of-home care of the child, if that person is not the parent, guardian, or custodian.

The term ‘parent’ means mother, father, or adoptive parent, but the term shall not include a parent whose parent-child relationship has been terminated by judicial decree or voluntary relinquishment.

Exceptions

No child who is, in good faith, under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall, for that reason alone, be considered to be a neglected child under this chapter.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the commission or attempted commission of one or more of the acts listed below by a family or household member or current or former sexual or intimate partner when such conduct constitutes a credible threat to the petitioner’s safety. The court may consider evidence of such acts, regardless of their proximity in time to the filing of the petition, which, in combination with recent conduct, reflects an ongoing pattern of behavior that reasonably causes or has caused the petitioner to fear for his or her safety or well-being:

  • Assault or reckless conduct, as defined in §§ 631:1 through 631:3
  • Criminal threatening, as defined in § 631:4
  • Sexual assault, as defined in §§ 632-A:2 through 632-A:5
  • Interference with freedom, as defined in §§ 633:1 through 633:3-a
  • Destruction of property, as defined in §§ 634:1 and 634:2
  • Unauthorized entry, as defined in §§ 635:1 and 635:2
  • Harassment, as defined in § 644:4

‘Domestic violence’ means abuse as defined above.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

‘Family or household member’ means:

  • Spouses, ex-spouses, persons cohabiting with each other, and persons who cohabited with each other but no longer share the same residence
  • Parents and other persons related by consanguinity or affinity, other than minor children who reside with the defendant

‘Intimate partners’ means persons currently or formerly involved in a romantic relationship, whether or not such relationship was ever sexually consummated.

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Records in the State registry shall be confidential and subject to rules on access established by the commissioner of the Department of Health and Human Services under RSA 541-A.

The case records of the department shall be confidential.

Persons or Entities Allowed Access to Records

The department shall provide access to the case records to the following persons unless the commissioner determines that the harm to the child named in the case record resulting from the disclosure outweighs the need for the disclosure presented by the person requesting access:

  • The child and the parent, guardian, or custodian of the child named in the case record
  • Another member of the family of the child named in the case record, if disclosure is necessary for the provision of services to the child or other family member
  • Employees of the department and their legal counsel
  • Persons made parties to judicial proceedings in New Hampshire relative to the child or family, whether civil or criminal, including the court with jurisdiction over the proceeding, any attorney for any party, and any guardian ad litem
  • A grand jury when it is necessary in the conduct of its official business
  • The relevant county
  • Another State’s child welfare agency, law enforcement agency, or other government entity that requires the information in order to carry out its responsibility under law to protect children from abuse or neglect
  • A person or entity requested by the department or ordered by the court to perform an evaluation or assessment; to create a service plan; or to provide services for the child, the child’s family, or a member of the child’s family
  • The superintendent of schools for the school district in which the child named in the case record is or will be attending school
  • The person or entity with whom the child resides, if that person is not the child’s parent, guardian, or custodian
  • A physician who reasonably suspects that a child may be abused or neglected
  • A law enforcement official who reasonably suspects that a child may be abused or neglected and who is participating with the department in a joint investigation
  • A State official who is responsible for the provision of services to children and families
  • A legislative official who has been granted specific responsibility for oversight of legislation related to the provision of services to children and families
  • A person conducting a bona fide research or evaluation project
  • Any person making a report of suspected child abuse or neglect
When Public Disclosure of Records is Allowed

This issue is not addressed in the statutes reviewed.

Use of Records for Employment Screening

The department shall, prior to adding new or transferred staff members whose job descriptions would cause them to come into direct contact with children, submit the names, birth names, birth dates, and addresses of such individuals for review against the State registry of founded abuse and neglect reports.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone participating in good faith in making a report pursuant to the reporting laws is immune from any civil or criminal liability that might otherwise be incurred or imposed. Any such participant has the same immunity with respect to participation in any investigation by the Division for Children, Youth, and Families or judicial proceeding resulting from such report.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter shall immediately make an oral report to the Department of Health and Human Services by telephone or otherwise, followed within 48 hours by a written report, if so requested by the department.

Content of Reports

The report shall contain, if known:

  • The name and address of the child and the person responsible for the child’s welfare
  • The nature and extent of the child’s injuries, including any evidence of prior injury
  • The identity of the person suspected of being responsible for the abuse or neglect
  • Any other information that might be helpful in establishing the neglect or abuse or that may be required by the department
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports are made to the Department of Health and Human Services.

Initial Screening Decisions

This issue is not addressed in the statutes reviewed.

Agency Conducting the Assessment/Investigation

The department shall immediately by telephone or in person refer all cases to the local law enforcement agency in which there is reason to believe that any person under age of 18 has been:

  • Sexually molested or exploited
  • Intentionally physically injured so as to cause serious bodily injury
  • Physically injured by other than accidental means so as to cause serious bodily injury
  • A victim of a crime

A written report shall be made to the law enforcement agency within 48 hours, Saturdays, Sundays, and holidays excluded. A copy of this report shall be sent to the office of the county attorney.

The Department of Health and Human Services and the Department of Justice shall jointly develop a standardized protocol for the interviewing of victims and the investigation and assessment of cases of child abuse and neglect. The protocol shall seek to minimize the impact on the victim. The protocol also shall be designed to protect the rights of all parties affected, and specifically address the need to establish safe and appropriate places for interviewing children.

Assessment/Investigation Procedures

For each report it receives, the department shall promptly perform a child protective investigation to determine:

  • The composition of the family or household, including:
    • The name, address, age, sex, and race of each child named in the report
    • Any siblings or other children in the same household or in the care of the same adults
    • The parents or other persons responsible for the welfare of the children
    • Any other adults in the same household
  • Whether there is probable cause to believe that any child in the family or household is abused or neglected, including a determination of:
    • Harm or threatened harm to each child
    • The nature and extent of present or prior injuries, abuse, or neglect, and any evidence thereof
    • The person or persons apparently responsible for the abuse or neglect
  • The immediate and long-term risk to each child if the child remains in the existing home environment
  • The protective treatment and ameliorative services that appear necessary to help prevent further child abuse or neglect and to improve the home environment and the parents’ ability to adequately care for the children

At the first contact in person, any person investigating a report of abuse or neglect on behalf of the department shall verbally inform the parents of a child suspected of being a victim of abuse or neglect of the specific nature of the charges and that they are under no obligation to allow a social worker or State employee on their premises or surrender their children to interviews unless that social worker or State employee is in possession of a court order to that effect. Upon receiving such information, the parent shall sign a written acknowledgement indicating that the information required under this paragraph was provided by the person conducting the investigation. The parent and department shall each retain a copy of the acknowledgment.

Timeframes for Completing Investigations

If it appears that the immediate safety or well-being of a child is endangered, the family may flee or the child disappear, or the facts otherwise so warrant, the department shall commence an investigation immediately after receipt of a report. In all other cases, a child protective investigation shall be commenced within 72 hours of receipt of the report.

Classification of Reports

Reports may be classified as follows:

  • A ‘founded report’ is a report for which the department finds probable cause to believe that the child who is the subject of such report is abused or neglected.
  • An ‘unfounded report’ is a report for which the department finds that there is no probable cause to believe that the child is abused or neglected.

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

The following professionals are required to report:

  • Physicians, surgeons, county medical examiners, psychiatrists, residents, interns, dentists, osteopaths, optometrists, chiropractors, nurses, hospital personnel, or Christian Science practitioners
  • Teachers, school officials, nurses, or counselors
  • Daycare workers or any other child or foster care workers
  • Social workers
  • Psychologists or therapists
  • Priests, ministers, or rabbis
  • Law enforcement officials
Reporting by Other Persons

All other persons who have reason to suspect that a child has been abused or neglected must report.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when a person has reason to suspect that a child has been abused or neglected.

Privileged Communications

Only the attorney-client privilege is permitted.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Not addressed in statutes reviewed.

Parental Drug Use as Child Abuse

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Current Through April 2015

No person shall knowingly engage in any of the following activities in the presence of a child or incapacitated adult; in the residence of a child or an incapacitated adult; in a building, structure, conveyance, or outdoor location where a child or incapacitated adult might reasonably be expected to be present; within any drug-free school zone; in a room offered to the public for overnight accommodations; or in any multiple unit residential building:

  • Manufacturing or attempting to manufacture methamphetamine
  • Storing any chemical substance
  • Storing or disposing of any methamphetamine waste products
  • Storing or disposing of any methamphetamine paraphernalia

No person shall knowingly cause or permit a child or incapacitated adult to inhale, be exposed to, have contact with, or ingest methamphetamine, a chemical substance, or methamphetamine paraphernalia.

No person shall, with the intent to engage in any prohibited conduct under the first paragraph above, knowingly cause or permit any child or incapacitated adult to buy or otherwise obtain methamphetamine paraphernalia.

A person convicted of an offense under § 639-A:2 shall be guilty of a felony and, notwithstanding § 651:2, may be sentenced to imprisonment for not more than 5 years or a fine of up to $10,000, or both.

A prosecution or conviction under this chapter is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In cases involving a neglected or abused child, the court shall appoint a court-appointed special advocate (CASA) or other approved program guardian ad litem (GAL) for the child. If a CASA or other approved program GAL is unavailable for appointment, the court may then appoint an attorney or other GAL for the child. The court shall not appoint an attorney for any GAL appointed for the child. The CASA or other approved program GAL shall have the same authority and access to information as any other GAL. For purposes of this paragraph, ‘unavailable for appointment’ means that there is no CASA or other approved program GAL available for appointment by the court following a finding of reasonable cause at the preliminary hearing held under § 169-C:15 so that the child’s interests may be represented effectively in preparation for and at an adjudicatory hearing.

In cases involving a neglected or abused child, when the child’s expressed interests conflict with the recommendation for dispositional orders of the GAL, the court may appoint an attorney to represent the interests of the child.

In any case of neglect or abuse brought pursuant to this chapter, the court shall appoint an attorney to represent an indigent parent alleged to have neglected or abused his or her child. In addition, the court may appoint an attorney to represent an indigent parent not alleged to have neglected or abused his or her child if the parent is a household member and such independent legal representation is necessary to protect the parent’s interests. The court shall not appoint an attorney to represent any other persons involved in a case brought under this chapter.

The Use of Court-Appointed Special Advocates (CASAs)

The CASA-GAL shall have the same authority and access to information as any other GAL.

Court Appointed Special Advocates of New Hampshire shall be accountable to the Guardian ad Litem Board for complying with the training requirements established by the board under § 490-C:5 and for the actions of its volunteer members who are appointed by the court as GALs.

Qualifications/Training

To be eligible for initial certification, recertification, reinstatement, or renewal of certification as a GAL, an applicant shall be of good character and shall meet such criteria or requirements as may be established by the Guardian ad Litem Board.

Certification issued by the board shall be valid for 3 years from the date of issuance, and shall expire 3 years from the date of issuance, unless renewed or reissued pursuant to rules adopted by, and upon payment of fees established in, the rules of the board. If timely and sufficient application has been made in accordance with board rules for renewal of certification, the existing certification shall not expire until the board has taken final action on the application for renewal.

Conditional or temporary certification as a GAL shall be according to the criteria, terms, requirements, procedures, and duration established by the board.

Specific Duties

When an attorney is appointed as counsel for a child, representation may include counsel and investigative, expert, and other services, including process to compel the attendance of witnesses, as may be necessary to protect the rights of the child.

The New Hampshire Supreme Court shall adopt rules regarding the duties and responsibilities of the CASA-GAL or other GAL appointed for the child.

How the Representative Is Compensated

This issue is not addressed in the statutes reviewed.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A comprehensive service plan will be developed for each child and youth who is or would be served by the department in accordance with title IV-E of the Social Security Act.

Who May Participate in the Case Planning Process

The Department of Health and Human Services shall develop the case plan.

In regulation: Foster parents shall have the opportunity to participate in the development of the case plan for children in care. Foster parents shall implement their portion of the case plan for the child in care and work cooperatively with department staff, the parents of the child in care, and service providers when implementing the case plan for the child.

Contents of a Case Plan

The case plan is a written document prepared by the Division for Children, Youth and Families or the Division or Juvenile Justice Services that, pursuant to statute § 170-G:4(III), describes the service plan for the child and family and addresses outcomes, tasks, responsible parties, and timeframes for correcting problems that led to abuse, neglect, delinquency, or child in need of services (CHINS).

Concurrent Planning for Permanency for Children

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Current Through November 2012

When a minor is in an out-of-home placement, the court shall adopt a concurrent plan other than reunification for the minor. The other options for a permanency plan include termination of parental rights or parental surrender when an adoption is contemplated, guardianship with a fit and willing relative or another appropriate party, or another planned permanent living arrangement.

‘Concurrent plan’ means an alternate permanency plan for use in the event that a child cannot be safely reunified with his or her parents.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court shall conduct an initial review hearing within 3 months of the dispositional hearing to review the status of all dispositional orders issued under this chapter. The court may conduct additional review hearings upon its own motion or upon the request of any party at any time.

For a child that has been in an out-of-home placement for 12 or more months, the court shall hold and complete a permanency hearing within 12 months of the finding. For a child who enters an out-of-home placement subsequent to a finding, the court shall hold and complete a permanency hearing within 12 months of the date the child enters the out-of-home placement.

For a child who is in an out-of-home placement following the permanency hearing, the court shall hold and complete a postpermanency hearing within 12 months of the permanency hearing and every 12 months thereafter as long as the child remains in an out-of-home placement. The court may conduct periodic postpermanency hearings upon its motion or upon the request of any party at any time.

Persons Entitled to Attend Hearings

The general public shall be excluded from any hearing. Only such persons as the parties, their witnesses, counsel, and representatives of the agencies present to perform their official duties shall be admitted. Other persons may be invited to attend, with the court’s approval.

Determinations Made at Hearings

At all hearings the court shall determine whether the Department of Health and Human Services has made reasonable efforts to finalize the permanency plan that is in effect. Where reunification is the permanency plan that is in effect, the court shall consider whether services to the family have been accessible, available, and appropriate.

Permanency Options

At a permanency hearing, the court shall determine whether and, if applicable, when the child will be returned to the parent or parents. If the standard for return is not met, the court shall identify a permanency plan other than reunification for the child. Other options for a permanency plan include:

  • Termination of parental rights or parental surrender when an adoption is contemplated
  • Guardianship with a fit and willing relative or another appropriate party
  • Another planned permanent living arrangement

Determining the Best Interests of the Child

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Current Through March 2016

This chapter shall be liberally construed to the end that its purpose may be carried out, as follows:

  • To encourage the mental, emotional, and physical development of each child coming within the provisions of this chapter, by providing him or her with the protection, care, treatment, counseling, supervision, and rehabilitative resources that he or she needs and has a right to receive
  • To achieve the foregoing purposes and policies, whenever possible, by keeping a child in contact with his or her home community and in a family environment by preserving the unity of the family and separating the child from his or her parents only when the safety of the child is in danger or when it is clearly necessary for his or her welfare or the interests of public safety, and when it can be clearly shown that a change in custody and control will plainly be better for the child
  • To provide effective judicial procedures through which the provisions of this chapter are executed and enforced and that recognize and enforce the constitutional and other rights of the parties and assures them a fair hearing

It is the purpose of this chapter, through the mandatory reporting of suspected instances of child abuse or neglect, to provide protection to children whose life, health, or welfare are endangered and to establish a judicial framework to protect the rights of all parties involved in the adjudication of child abuse or neglect cases. Each child coming within the provisions of this chapter shall receive, preferably in his or her own home, the care, emotional security, guidance, and control that will promote the child’s best interests; and, if the child should be removed from the control of his or her parents, guardian, or custodian, adequate care shall be secured for the child. This chapter seeks to coordinate efforts by State and local authorities, in cooperation with private agencies and organizations, citizens’ groups, and concerned individuals, to:

  • Protect the safety of the child
  • Preserve the unity of the family, whenever possible
  • Provide assistance to parents to deal with and correct problems in order to avoid removal of children from the family
  • Take such action as may be necessary to prevent abuse or neglect of children
  • Provide protection, treatment, and rehabilitation, as needed, to children placed in alternative care

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

A petition for termination of parental rights shall be filed when any one or more of the following circumstances exist:

  • The child has been in an out-of-home placement for 12 of the most recent 22 months.
  • The child has been abandoned.
  • The parent has been convicted of:
    • Murder of another child of the parent, a sibling or stepsibling of the child, the child’s other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant
    • Manslaughter of another child of the parent
    • Attempt, solicitation, or conspiracy to commit any of the offenses listed above
    • Felony assault that resulted in injury to the child, a sibling or stepsibling of the child, the child’s other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant
  • The parent, although financially able, has substantially and continuously neglected to provide the child with necessary subsistence, education, or other necessary care.
  • The parent has failed to correct the conditions leading to the child’s out-of-home placement within 12 months, despite reasonable efforts under the direction of the district court to rectify the conditions.
  • Because of mental deficiency or mental illness, the parent is and will continue to be incapable of giving the child proper parental care and protection for a longer period of time than would be wise or prudent.
  • The parent knowingly or willfully caused or permitted another to cause severe sexual, physical, emotional, or mental abuse of the child.
  • The parent’s conduct toward the child has resulted in severe harm to the child.
  • The parent’s conduct toward the child has continued despite the reasonable efforts of authorized agencies in obtaining or providing services for the parent to reduce or alleviate such conduct.
  • The parent, as a result of incarceration for a felony offense, is unable to discharge his or her responsibilities for the child and, in addition, has been shown to have abused or neglected the child. The court may review the conviction of the parent to determine whether the felony offense is of such a nature, and the period of incarceration imposed of such duration, that the child would be deprived of proper parental care and protection and left in an unstable or impermanent environment for a longer period of time than would be prudent.
Circumstances That Are Exceptions to Termination of Parental Rights

The State may not be required to file a petition for termination of parental rights if one or more of the following conditions exist:

  • The child is being appropriately cared for by a relative.
  • A State agency has documented in the case file a compelling reason for determining that filing a petition for termination of parental rights would not be in the best interests of the child.
  • The State has not provided to the family of the child such services and reasonable efforts as the State deems necessary for the safe return of the child to the child’s home.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Kinship Guardianship as a Permanency Option

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

Current Through December 2014

Definitions

The term ‘guardian’ means a parent or person appointed by a court having jurisdiction with the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child, and to be concerned about the general welfare of the child.

The term ‘legal custody’ means a status created by court order embodying the following rights and responsibilities, unless otherwise modified by court order:

  • The right to determine where and with whom the child shall live
  • The right to have the physical possession of the child
  • The right and the duty to protect and constructively discipline the child
  • The responsibility to provide the child with food, clothing, shelter, education, emotional security, and ordinary medical care

The rights and responsibilities of the custodian shall be exercised subject to the power, rights, duties, and responsibilities of the guardian of the child, and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree.

The term ‘residual parental rights and responsibilities’ means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship, except guardianship pursuant to termination of parental rights, including, but not limited to, right of visitation, consent to adoption, right to determine religious affiliation, and responsibilities for support.

Purpose of Guardianship

It is the purpose of this chapter to secure for a child an environment of stability and security by providing for the appointment of a guardian of the person, when such appointment is in the best interests of the child. This chapter is designed to provide procedural and substantive safeguards for the rights of parents and their minor children. Implicit in this chapter shall be the recognition that the interests of a child are generally best promoted in the child’s own home, unless the best interests of the child require substitution or supplementation of parental care and supervision.

A Guardian’s Rights and Responsibilities

Except as otherwise expanded or limited by statute or order of court, a guardian of the person of a child has the powers and responsibilities of a parent regarding the child’s support, care, and education, but a guardian is not personally liable for the child’s expenses and is not liable to third persons by reason of the relationship for acts of the child. The guardian shall not be liable for injury to the child resulting from the negligent acts or omissions of third persons unless a parent would have been liable in the same circumstances.

A guardian may:

  • Give any necessary consent or approval to enable the child to receive medical or other professional care, counsel, treatment, or service. However, no guardian may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court
  • Consent to the marriage or adoption of the child
  • If reasonable under all of the circumstances, delegate to the child certain responsibilities for decisions affecting the child’s well-being

The duty and authority of the guardian include, but are not necessarily limited to:

  • The authority to consent to marriage; enlistment in the armed forces of the United States, and major medical, psychiatric, and surgical treatment
  • The authority to represent the child in legal actions
  • The authority to make other decisions of substantial legal significance concerning the child
  • The authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order
  • The rights and responsibilities of legal custody, except when legal custody has been vested in another individual or in an authorized agency
Qualifying the Guardian

In all guardianships of the person, except when an agency or institution is named as the proposed guardian, the court shall review the proposed guardian’s record of criminal convictions maintained by the New Hampshire Division of State Police and any record of founded complaints of child abuse or neglect by the proposed guardian in the child abuse and neglect registry maintained by the Department of Health and Human Services.

Procedures for Establishing Guardianship

Any person may nominate a guardian for a child in a will, by petition, or by written consent to a petition by another. A child age 14 or older or any person or authorized agency interested in the welfare of the child also may petition for appointment of a guardian. The petition shall set forth, so far as is known to the petitioner:

  • Whether guardianship is being sought by the department as part of the permanent plan for a child in the department’s custody pursuant to the Adoption and Safe Families Act of 1997 (P.L. 105-89)
  • Whether adoption of the child by the proposed guardian is contemplated

The petition shall include a statement describing specific facts concerning actions or omissions involving the child that are claimed to demonstrate that the guardianship is in the best interests of the child.

The burden of proof shall be on the petitioner to establish by a preponderance of the evidence that guardianship is in the best interests of the child.

If a parent objects to the establishment of the guardianship, the court shall hold a hearing. The burden of proof shall be on the petitioner to establish by clear and convincing evidence that the best interests of the child require substitution of parental care and supervision to provide for the essential physical and safety needs of the child or to prevent specific, significant psychological harm to the child.

The consent of the child shall not be necessary for the appointment of a guardian, but the court shall in all cases ascertain the child’s preference and give to it such weight as may seem just.

The court may appoint a guardian as requested if it finds that guardianship is in the best interests of the child and the person nominated is appropriate.

When the court grants guardianship as part of the permanency plan for a child in the department’s custody pursuant to the Adoption and Safe Families Act of 1997, the court shall so specify in its order.

Contents of a Guardianship Order

Letters of guardianship shall be issued to the guardian and shall contain:

  • The nature and scope of the guardianship
  • Limitations imposed by the court on the guardian
  • Whether the guardianship is part of the permanent plan for a child previously under the custody of the department pursuant to the Adoption and Safe Families Act of 1997

The appointment of a guardian of a child shall not relieve the child’s parents, or any other persons liable for the support of the child, from their obligation to provide for such support. The court, at the time of such appointment or at any time thereafter, may order and require the parent(s) or other persons to contribute to the support and maintenance of the child in such amounts and at such times as the court determines to be just and reasonable.

The court may award reasonable visitation rights to the parent or parents. The presumption shall be in favor of liberal visitation rights absent a showing of harm to the child. If a party wishes to have any preexisting court visitation orders incorporated into the guardianship order, that party has the burden of providing said visitation orders to the court for its consideration. The court shall incorporate such visitation orders in its order, unless there has been a change in circumstances that warrants different visitation arrangements. In guardianships granted as part of the permanency plan for a child previously in the department’s custody pursuant to the Adoption and Safe Families Act of 1997, the court may give the guardian discretion to determine visitation.

Modification/Revocation of Guardianship

Any person appointed as guardian over the person or of an estate or both shall serve until resignation accepted by the court, removal by the court for cause, death of the guardian, or termination of the guardianship. A guardian desiring to resign shall request court approval of the resignation in writing.

Resignation of a guardian is not effective until either accepted by the court and until a successor guardian is appointed or the guardianship is terminated.

The resignation, removal, or death of the guardian shall not terminate the guardianship unless expressly so ordered by the court. If the guardianship is not terminated by the court, the court shall appoint a successor guardian.

A guardianship of the person or of the estate of a minor shall terminate upon order of the court, the death of the minor, the minor’s 18th birthday, a finding by the court that the minor has been emancipated under relevant State law, or upon the issuance of a final decree of adoption.

Any minor under guardianship of the person who is age 14 or older, or any person interested in the welfare of the minor, may petition for the termination of the guardianship of the person. The guardianship of the person shall be terminated upon a showing, by a preponderance of the evidence, that substitution or supplementation of parental care and supervision is no longer necessary to provide for the essential physical and safety needs of the minor, and that termination of the guardianship will not adversely affect the minor’s psychological well-being.

The court may from time to time, upon application of any person interested in the welfare of the minor, and with notice to all parties, revise or alter any prior orders or make a new order or decree relative to the guardianship of the person, of the estate, or both, as the best interests of the minor or the prudent management of the estate may require.

Eligibility for Guardianship Subsidy

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

Links to Agency Policies

New Hampshire Department of Health and Human Services, A Resource Guide for New Hampshire Relative Caregiversexternal link (PDF – 4,254 KB)

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘relative’ means parent, grandparent, brother, sister, stepparent, stepbrother, stepsister, uncle, aunt, nieces, nephews, or first and second cousins. Legal custody may be transferred to a child-placing agency or relative.

Requirements for Placement with Relatives

No child shall be placed with a relative until a written social study of the relative’s home, conducted by a child-placing agency, is submitted to the court.

Requirements for Placement of Siblings

The court shall ensure, whenever reasonable and practical and based on a determination of the best interests of the child, that children who have an existing relationship with siblings and who are separated from their siblings as a result of a court decree, court order, consent order, or court-recommended placement, including, but not limited to, placement in foster homes or in the homes of parents or extended family members, have access to and visiting rights with such siblings throughout the duration of such placement, and subsequent to such placement if the children or their siblings are separated by long-term or short-term foster care placement.

In regulation: The child-placing agency shall ensure that the child being placed is in a program appropriate to his or her needs. Siblings shall be placed together when possible.

Relatives Who May Adopt

The term ‘related child’ means a child who is related within the second degree of kinship either by blood or affinity. Relatives within the second degree include stepparents, sisters, brothers, grandparents, aunts, or uncles.

Requirements for Adoption by Relatives

In the adoption of a related minor child, the court may, for good cause shown, proceed to a hearing and a decree without an assessment when both of the following circumstances are met:

  • The parents of the minor child have surrendered their parental rights.
  • The minor child has resided with the petitioners to whom the child is related for at least 3 years prior to filing the petition for adoption.

The court shall require a background check in all private adoption proceedings if there has not been an assessment. The background check will include both a criminal records check conducted by the New Hampshire State police and a search of the abuse and neglect registry maintained by the Department of Health and Human Services.

The court shall require a background check in all adoption proceedings initiated by the department or by another child-placing agency. The background check shall consist of a fingerprint-based criminal record check of national crime information databases for all prospective adoptive parents and a central registry check for all prospective adoptive parents and any other adult living in the home.

In regulation: Preadoptive training shall be optional when the adoptive parent applicant is a relative of the child who has lived with the child for at least 6 months.

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

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

Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts are services to the family that are accessible, available, and appropriate.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent placement
  • To reunify the family
  • To make and finalize a new permanent home for the child
When Reasonable Efforts Are NOT Required

The State agency shall discontinue reasonable efforts and file a petition for termination of parental rights when one or more of the following circumstances exist:

  • The child has been in an out-of-home placement due to a finding of child neglect or abuse for 12 of the most recent 22 months.
  • The court has determined that the child has been abandoned.
  • The parent has been convicted of murder of another child of the parent, a sibling or stepsibling of the child, the child’s other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.
  • The parent has been convicted of manslaughter of another child of the parent.
  • The parent has been convicted of attempt, solicitation, or conspiracy to commit any of the offenses specified above.
  • The parent has been convicted of a felony assault that resulted in injury to the child, a sibling or stepsibling of the child, the child’s other parent, or other persons related by consanguinity or affinity, including a minor child who resided with the defendant.

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

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

7th Circuit

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

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3rd Circuit

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5th Circuit

6th Circuit

7th Circuit

8th Circuit

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10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

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4th Circuit

5th Circuit

6th 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.

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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4th Circuit

5th Circuit

6th Circuit

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8th Circuit

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11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

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10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

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3rd 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.

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

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5th 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

2nd Circuit

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4th Circuit

5th 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)

 

1st Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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