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

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 Jersey

 

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’ or ‘abused or neglected child’ means a child under age 18 whose parent, guardian, or other person having custody and control:

  • Inflicts or allows to be inflicted upon such child physical injury by other than accidental means that causes or creates a substantial risk of death, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ
  • Creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means that would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ
  • Inflicts unreasonably or allows to be inflicted harm or substantial risk thereof, including the infliction of excessive corporal punishment or by any other acts of a similarly serious nature requiring the aid of the court
  • Uses excessive physical restraint upon the child under circumstances that do not indicate that the child’s behavior is harmful to himself or herself, others, or property
Neglect

‘Abused child’ or ‘abused or neglected child’ means a child younger than age 18 whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent, guardian, or other person having custody and control, to exercise a minimum degree of care:

  • In supplying the child with adequate food, clothing, shelter, education, medical, or surgical care, although financially able to do so or although offered financial or other reasonable means to do so
  • In providing the child with proper supervision or guardianship
Sexual Abuse/Exploitation

The terms ‘abused child’ or ‘abused or neglected child’ include a child under age 18 whose parent, guardian, or other person having custody and control commits or allows to be committed an act of sexual abuse against the child.

Emotional Abuse

The terms ‘abused child’ or ‘abused or neglected child’ include a child under age 18 who is in an institution and:

  • Has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child’s mental or physical well-being
  • Who has been willfully isolated from ordinary social contact under circumstances that indicate emotional or social deprivation
Abandonment

Citation: Ann. Stat. § 9:6-8.21
The terms ‘abused child’ or ‘abused or neglected child’ include a child under age 18 who has been willfully abandoned by his or her parent, guardian, or other person having custody and control.

Standards for Reporting

Citation: Ann. Stat. § 9:6-8.10
A report is required when any person has reasonable cause to believe that a child has been subjected to child abuse.

Persons Responsible for the Child

‘Parent or guardian’ means any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent, or any person who has assumed responsibility for the care, custody, or control of a child or upon whom there is a legal duty for such care.

Parent or guardian includes a teacher, employee, or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child’s welfare and any other staff person of an institution, regardless of whether or not the person is responsible for the care or supervision of the child. Parent or guardian also includes a teaching staff member or other employee, whether compensated or uncompensated, of a day school.

Exceptions

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

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

This issue is not addressed in the statutes reviewed.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic violence’ means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:

  • Homicide
  • Assault
  • Terroristic threats
  • Kidnapping
  • Criminal restraint
  • False imprisonment
  • Sexual assault
  • Criminal sexual contact
  • Lewdness
  • Criminal mischief
  • Burglary
  • Criminal trespass
  • Harassment
  • Stalking

When one or more of these acts is inflicted by an unemancipated minor upon a person protected under this act, the occurrence shall not constitute ‘domestic violence’ but may be the basis for the filing of a petition or complaint pursuant to the provisions of § 2A:4A-30 (Juvenile Justice Code).

Persons Included in the Definition

‘Victim of domestic violence’ means a person protected under this act and shall include any person who is age 18 or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.

‘Victim of domestic violence’ also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. ‘Victim of domestic violence’ also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

All records of child abuse reports, all information obtained by the Department of Children and Families in investigating such reports, and all reports of findings forwarded to the child abuse registry shall be kept confidential.

The department shall disclose information only as authorized by the section that is relevant to the purpose for which the information is required, as long as nothing is disclosed that would likely endanger the life, safety, or physical or emotional well-being of a child or the life or safety of any other person or that may compromise the integrity of a department investigation, a civil or criminal investigation, or judicial proceeding.

Persons or Entities Allowed Access to Records

Records and reports may be released to:

  • A child protective agency or law enforcement agency investigating a report of child abuse or neglect
  • A physician who reasonably suspects that a child may be abused or neglected
  • A physician, police officer, or any other person authorized to place a child in protective custody when needed to determine whether to place a child in protective custody
  • An agency authorized to care for, treat, assess, evaluate, or supervise a child who is the subject of a child abuse report, or a parent, guardian, resource family parent, or other person who is responsible for the child’s welfare, or both, when the information is needed in connection with the provision of care, treatment, assessment, evaluation, or supervision to such child or such parent, guardian, or resource family parent
  • A court or the Office of Administrative Law when it is necessary for determination of an issue before it
  • A grand jury when it is necessary in the conduct of its official business
  • Any appropriate State legislative committee acting in the course of its official functions
  • The Victims of Crime Compensation Board, for the purpose of providing services to a child victim who is the subject of a report
  • Any person appealing a department service or status action or a substantiated finding of child abuse or neglect and his or her attorney or authorized lay representative
  • The members of a county multidisciplinary team
  • A person being evaluated by the department or the court as a potential caregiver to determine whether that person is willing and able to provide the care and support required by the child
  • The legal counsel of a child, parent, or guardian
  • A person who has reported suspected child abuse or neglect
  • A parent, resource family parent, or legal guardian when the information is needed in a department matter in which that parent, resource family parent, or legal guardian is directly involved
  • A Federal, State, or local government entity, to the extent necessary to carry out its responsibilities
  • Citizen review panels
  • The Child Fatality and Near Fatality Review Board
  • Members of a family team or other case-planning group for the purpose of addressing the child’s safety, permanency, or well-being
  • A child who is the subject of a report, as appropriate to the child’s age or condition, to enable the child to understand the basis for the department’s involvement
  • Any person engaged in bona fide research
When Public Disclosure of Records is Allowed

The department may disclose to the public the findings or information about a case of child abuse or neglect that has resulted in a child fatality or near fatality. Nothing may be disclosed that would likely endanger the life, safety, or physical or emotional well-being of a child or the life or safety of any other person or that may compromise the integrity of a department investigation or a civil or criminal investigation or judicial proceeding.

Use of Records for Employment Screening

Records may be accessed by:

  • A family daycare-sponsoring organization for the purpose of providing information on child abuse or neglect allegations involving prospective or current providers or household members and, as necessary, for use in administrative appeals related to information obtained through a child abuse registry search
  • Any person or entity mandated to consider child abuse or neglect information when conducting a background check or employment-related screening of an individual employed by or seeking employment with an agency or organization providing services to children
  • Any person or entity conducting a disciplinary, administrative, or judicial proceeding to determine terms of employment or continued employment of an officer, employee, or volunteer with an agency or organization providing services for children

The department shall release records and reports to a unified child care agency for the purpose of providing information on child abuse or neglect allegations involving a prospective approved home provider or any adult household member to a child’s parent when the information is necessary for the parent to make a decision concerning the placement of the child in an appropriate child care arrangement.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone acting pursuant to the reporting laws in making a report under the reporting laws shall have immunity from any civil or criminal liability that might otherwise be incurred or imposed. Any such person shall have the same immunity with respect to testimony given in any 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

Any person who has reasonable cause to believe that a child has been subjected to abuse or neglect shall report the same to the Division of Child Protection and Permanency by telephone or otherwise.

Content of Reports

The report, where possible, shall contain:

  • The names and addresses of the child and the child’s parent, guardian, or other person having custody
  • If known, the child’s age
  • The nature and possible extent of injuries, including any evidence of prior injury
  • Any other information that might be helpful with respect to the child abuse and the identity of the perpetrator
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The division shall maintain, at all times, an emergency telephone service for the receipt of calls involving a report, complaint, or allegation of child abuse or neglect.

Initial Screening Decisions

Upon receipt of a report, the division shall immediately take such action as shall be necessary to ensure the safety of the child and to that end may request and shall receive appropriate assistance from local and State law enforcement officials. The division shall initiate an investigation within 24 hours of receipt of the report, unless a delay is authorized based upon the request of a law enforcement official. The division also shall, within 72 hours, forward a report of such matter to the child abuse registry.

In regulation: The central registry shall deem a call to be a report if it contains at least one allegation that, if true, would constitute a child being an abused or neglected child, as defined by law.

Child Protective Services (CPS) shall start the investigation of a report no later than the end of the work day or within 24 hours of the central registry determining the timeframe. Each report that meets one or more of the following criteria shall be investigated no later than the end of the work day of receipt:

  • Law enforcement personnel request an immediate response.
  • An immediate response will prevent the loss of evidence.
  • A child has died due to abuse or neglect and a sibling remains under the care of a parent or guardian.
  • A child is born drug-exposed.
  • A child under age 6 is alone at the time of the report.
  • A child requires medical attention at the time of the report.
  • A child is being seriously physically abused at the time of the report.
Agency Conducting the Assessment/Investigation

CPS shall investigate each new report, regardless of whether or not the alleged child victim and his or her family are known to the department. CPS shall investigate each report alleging abuse or neglect on a military installation, to the extent permitted by the base commander.

Assessment/Investigation Procedures

The child protective investigator shall, in completing an investigation:

  • Complete a safety assessment
  • Interview, in person and individually, the caregiver and each adult in the home
  • Read and review each available prior investigation relevant to the report
  • Interview the reporter and each other person identified as having knowledge of the incident or as having made an assessment of physical harm
  • Interview the alleged perpetrator, in person
  • Complete a child abuse record check of each household member and each other individual regularly frequenting or living in the alleged child victim’s home
  • Conduct a criminal history record check to identify a paramour’s record of criminal history, when the report involves a paramour
  • Complete a risk assessment
  • Observe the environment in which the alleged abuse or neglect occurred or that poses a threat to the child
  • Obtain a medical assessment of the injury

The child protective investigator shall, in completing an investigation:

  • Assess the strengths and needs of the caregiver
  • Assess the strengths and needs of the alleged child victim
  • Interview at least two collateral contacts who have knowledge of the incident or circumstances
  • Confirm child care arrangements reported by the caregiver, when appropriate
  • Interview school personnel, child care providers, witnesses, and community professionals who have first-hand knowledge of the alleged abuse or neglect
Timeframes for Completing Investigations

The child protective investigator shall make the finding for each report within 60 days of the report being received at the central registry, except for good cause approved by the office manager. The officer manager may grant extensions in increments of 30 days if the child protective investigator is continuing efforts to confirm credible information.

Classification of Reports

The child protective investigator shall evaluate the available information and, for each allegation, determine whether abuse or neglect has occurred, and shall make a finding of either substantiated or unfounded. The child protective investigator shall make every reasonable effort to identify the perpetrator for each allegation of abuse or neglect.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Not addressed in statutes reviewed.

Reporting by Other Persons

Any person having reasonable cause to believe that a child has been subjected to child abuse, neglect, or acts of child abuse shall report.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when a person has reasonable cause to believe that a child has been subjected to abuse or neglect.

Privileged Communications

Not addressed in statutes reviewed.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

The identity of the reporter shall not be made public. Any information that could endanger any person shall not be released.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

This issue is not addressed in the statutes reviewed.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

Any minor who is the subject of a child abuse or neglect proceeding must be represented by a law guardian. The Superior Court, Chancery Division, Family Part, on its own motion, will make appointments of law guardians.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The law guardian must be an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under P.L.1974, c.119 to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings.

Specific Duties

The duty of the law guardian is to help protect the interests of the child and to help the child express his or her wishes to the court.

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 placement plan must be prepared for each child placed outside of his or her home.

In regulation: A case plan shall be developed with each family for whom services will be provided. The representative of the Department of Children and Families shall prepare the case plan:

  • Within 60 calendar days of receipt of a report of abuse or neglect or a child welfare services referral or application
  • Within 30 calendar days of a child entering or reentering out-of-home placement

The department representative also shall prepare the case plan at least once every 6 months after the previous case plan. The case plan shall be revised more often if the case situation shows significant change.

Who May Participate in the Case Planning Process

The department shall prepare the plan in consultation with the child’s parents or legal guardian and, when appropriate, the child.

In regulation: The department representative shall develop the case plan with the child’s parent, unless he or she is unwilling to participate, any person appointed by the court for this purpose, and the child, if the division representative determines that the child is willing and able to participate in the development of the case plan. Other interested parties or service providers may be invited to participate.

In addition to the above, when the child lives in an out-of-home placement, the department representative shall develop the case plan in consultation with the child’s out-of-home placement provider.

Contents of a Case Plan

The placement plan shall include:

  • The goal for the permanent placement or return home of the child and anticipated date that goal will be achieved
  • The intermediate objectives for achieving the goal
  • The duties and responsibilities of the department, the parents or legal guardian, and the temporary caregiver, including the services to be provided by the department
  • The services to be provided to the parent or legal guardian or an exception to the requirement to provide reasonable efforts toward family reunification
  • A permanency plan for the child and the department’s reasonable efforts to achieve that plan, if the department has established an exception to the requirement to provide reasonable efforts toward family reunification or the child has been in placement for 12 months

The permanency plan shall include whether and, if applicable, when:

  • The child shall be returned home, if the child can be returned home without endangering the child’s health or safety.
  • The department has determined that family reunification is not possible, and the department shall file a petition for the termination of parental rights for the purpose of adoption.
  • The department has determined that termination of parental rights is not appropriate, and the child shall be placed in an alternative permanent placement.

In regulation: The written case plan for a family with the child living at home shall include:

  • The reasons for the department’s involvement
  • The underlying needs of each family member
  • The case goal for each family member receiving services
  • The schedule for contacts between the department and family members
  • The supports and services offered to, provided to, and used by the family
  • The behavioral and other changes expected from each person
  • The services or activities that are intended to facilitate the changes and who will accomplish or provide them
  • Progress toward achieving the case goal by each family member

The case plan for a child in an out-of-home placement shall include:

  • The efforts made to prevent placement, the reasons for the placement, efforts made to reunify the family, and the impact of those efforts
  • The case goal for each child, the progress toward its achievement, and any obstacles to reaching it
  • An assessment of the safety and appropriateness of the current placement
  • The efforts made to find a missing mother and father or relative
  • The schedule for contacts between the department and the family members
  • The plan for visits between the child and parents, siblings, and other relatives
  • The needs of the child, the parent, and the child’s care provider in order to meet the case goal
  • The behavioral and other changes expected from each person
  • The services or actions intended to meet the identified needs and who is responsible to provide the services and complete the activities, with projected timeframes, as well as the appropriateness of the services for the child
  • A description of the type of out-of-home placement
  • How the placement is safe, near the parent’s home, and the least restrictive and most familylike available, consistent with the best interests and special needs of the child
  • Documentation of the appropriateness of the child’s current educational setting
  • Why the child was placed a substantial distance from his or her parents or out-of-State, when applicable
  • The child’s health and education records
  • For a child age 14 or older, programs and services to help the child transition from out-of-home placement to self-sufficiency skills

The case plan for a child whose case goal is either adoption or kinship legal guardianship shall include the steps the department is taking to finalize a placement with an adoptive family a relative or caregiver who is willing to become a kinship legal guardian.

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

The Division of Child Protection and Permanency shall prepare, and revise as necessary, a placement plan for each child placed outside his or her home. This shall be done in consultation with the child’s parents or legal guardian and the child, when appropriate. The placement plan shall include a statement of the services to be provided to the parent or legal guardian or an exception to the requirement to provide reasonable efforts toward family reunification, in accordance § 30:4C-11.3. Services to facilitate adoption or an alternative permanent placement may be provided concurrently with services to reunify the child with the parent or guardian.

Reasonable efforts to place a child for adoption or with a legal guardian or in an alternative permanent placement may be made concurrently with reasonable efforts to preserve and reunify the child’s family.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A child placement review board shall make an initial review of the placement within 45 days following the placement. A periodic review shall take place every 12 months thereafter. The board shall continue to conduct periodic reviews until the Division of Youth and Family Services terminates its supervision.

A permanency hearing shall be held that provides review and approval by the court of the placement plan:

  • No later than 12 months after placement
  • Within 30 days of a finding that reasonable efforts to reunify are not required
Persons Entitled to Attend Hearings

Written notice of the date, time, and place of the permanency hearing shall be provided at least 15 days in advance to the following, each of whom shall be entitled to attend the hearing and to submit written information to the court:

  • The division or agency
  • The child
  • The parents, including a noncustodial parent or legal guardian
  • The temporary caregiver
  • Any other person or agency that the court determines has an interest in or information relating to the welfare of the child
  • The counsel for a parent, child, or other interested party who has provided or is providing representation in the case before the court
  • The child’s resource family parent or relative providing care for the child

The child’s resource family parent or relative providing care shall receive the notice and shall have a right to be heard at the hearing, but he or she shall not be made a party to the hearing solely on the basis of the notice and right to be heard.

Determinations Made at Hearings

All reviews shall include, but not necessarily be limited to, the consideration of:

  • The appropriateness of the goal, objectives of the placement plan, and anticipated date that the goal will be achieved
  • The appropriateness of the services provided to the child and to the temporary caregiver
  • Whether the child has siblings who are also placed outside of their home
  • Whether the wishes of the child were considered regarding placement and development of the placement plan, when appropriate
  • Whether the division, the parents or legal guardian, and the temporary caregiver are fulfilling their respective responsibilities in accordance with the placement plan
  • Whether the parents or legal guardian have been afforded the opportunity and been encouraged to participate in a program of regular visitation with the child
  • Whether there are obstacles that hinder or prevent the attainment of the placement plan objectives and goal
  • The circumstances surrounding the placement
  • The appropriateness of the services provided to the parent or legal guardian
  • The appropriateness of the division’s permanency plan and reasonable efforts to achieve that plan

At the permanency hearing, the court shall consider:

  • The goal for the permanent placement or return home of the child and the anticipated date that the goal will be achieved
  • The intermediate objectives relating to attainment of the goal
  • A statement of the duties and responsibilities of the division, the parents or legal guardian, and the temporary caregiver, including the services to be provided by the division to the child and to the temporary caregiver
  • A statement of the services to be provided to the parent or legal guardian
Permanency Options

The permanency plan shall include whether and, if applicable, when:

  • The child shall be returned to the parent or guardian, if the child can be returned home without endangering his or her health or safety.
  • The division has determined that family reunification is not possible, and the division shall file a petition for the termination of parental rights (TPR) for the purpose of adoption.
  • The division has determined that TPR is not appropriate, and the child shall be placed in an alternative permanent placement.

 

Determining the Best Interests of the Child

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Current Through March 2016

In accordance with the provisions of § 30:4C-11.1(b)-(d), when determining the reasonable efforts to be made and when making the reasonable efforts, the child’s health and safety shall be of paramount concern.

The legislature finds and declares that:

  • Because the safety of children must always be paramount, allegations of child abuse and neglect must be investigated quickly and thoroughly and protective actions must be taken immediately, if necessary.
  • Concerns about the safety, permanency, and well-being of children require significant changes in the organization of the child welfare system, the ability to implement best practices within the system, the development of effective services to meet the needs of children and families, and the elimination of impediments to the quick and efficient management of abuse and neglect cases.
  • Children need safe, stable, and positive relationships with caring adults in order to thrive, and, if their parents are incapable of providing such a caring relationship, the State must look to other families to provide this kind of relationship.
  • To ensure the best outcomes for children and their families, these substitute families must be viewed and treated as ‘resource families’ and provided with appropriate support, training, and responsibilities, which will include: expedited licensure for this purpose, equalized payment rates for care among the various types of resource families, and enhanced access to necessary support services tailored to their respective needs.
  • Youth must be provided with supports and services in their communities that will enable them to grow into healthy and productive adults, and those youth who previously received child welfare services must continue to receive those services beyond the age of 18, up to age 21, as appropriate.

This act is to be administered strictly in accordance with the general principles laid down in this section, which are declared to be the public policy of this State, whereby the safety of children shall be of paramount concern and the best interests of children shall be a primary consideration:

  • That the preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare, but the health and safety of the child shall be the State’s paramount concern when making a decision on whether or not it is in the child’s best interests to preserve the family unit
  • That the prevention and correction of dependency and delinquency among children should be accomplished so far as practicable through welfare services that will seek to continue the living of such children in their own homes
  • That each child placed outside his or her home by the State has the need for permanency:
    • Through return to the child’s own home, if the child can be returned home without endangering the child’s health or safety
    • Through adoption, if family reunification is not possible
    • Through an alternative permanent placement, if termination of parental rights is not appropriate

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

A petition to terminate parental rights shall be filed when there is evidence of one or more of the following:

  • The parent has abandoned the child.
  • The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty, or abandonment.
  • Reasonable efforts to rehabilitate the parent have been provided for 1 year, and the parent has failed to remedy the conditions that led to the child’s out-of-home placement.
  • The parent has been convicted of:
    • Murder, aggravated manslaughter, or manslaughter of another child of the parent
    • Aiding, abetting, attempting, or soliciting to commit the above murder, aggravated manslaughter, or manslaughter of the child or another child of the parent
    • Committing or attempting to commit an assault or similarly serious criminal act that resulted, or could have resulted, in the death or significant bodily injury to the child or another child of the parent
  • Parental rights to another child of the parent have been involuntarily terminated.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition shall be filed as soon as any one of the circumstances listed above is established, but no later than when the child has been in placement for 15 of the most recent 22 months unless the division establishes an exception to the requirement to seek termination of parental rights.

The Division of Child Protection and Permanency shall not be required to file a petition seeking the termination of parental rights if:

  • The child is being cared for by a relative, and a permanent plan for the child can be achieved without termination of parental rights.
  • The division has documented in the case plan, which shall be available for court review, a compelling reason for determining that filing the petition would not be in the best interests of the child.
  • The division is required to provide reasonable efforts to reunify the family but has not provided to the family of the child, consistent with the time period in the case plan, such services as the division deems necessary for the safe return of the child to his or her home.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘caregiver’ means a person over age 18, other than a child’s parent, who has a kinship relationship with the child and has been providing care and support for the child, while the child has been residing in the caregiver’s home, for either the last 12 consecutive months or 15 of the last 22 months. ‘Caregiver’ also could include a resource family parent as defined in § 30:4C-26.4.

‘Family friend’ means a person who is connected to a child or the child’s parent by an established, positive psychological or emotional relationship that is not a biological or legal relationship.

‘Kinship legal guardian’ means a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court pursuant to § 3B:12A-1, et seq. A kinship legal guardian shall be responsible for the care and protection of the child and for providing for the child’s health, education, and maintenance.

‘Kinship relationship’ means a family friend or a person with a biological or legal relationship with the child.

Purpose of Guardianship

The legislature finds and declares that:

There is an increase in the number of children who cannot reside with their parents due to the parents’ incapacity or inability to perform the regular and expected functions of care and support of the child.

An increasing number of relatives, including grandparents, find themselves providing care on a long-term basis to these children without court-approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver’s own child or sibling who is the parent. In these cases, adoption of the child is neither feasible nor likely, and it is imperative that the State create an alternative, permanent legal arrangement for children and their caregivers. One such alternative arrangement, which does not require the termination of parental rights, is a court-awarded kinship legal guardianship that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of certain parental rights, but retains the birth parents’ rights to consent to adoption, the obligation to pay child support, and the parents’ right to have some ongoing contact with the child.

In considering kinship legal guardianship, the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely. Therefore, it is in the public interest to create a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship relationships.

A Guardian’s Rights and Responsibilities

A kinship legal guardian shall have the same rights, responsibilities, and authority relating to the child as a birth parent, including, but not limited to:

  • Making decisions concerning the child’s care and well-being
  • Consenting to routine and emergency medical and mental health needs
  • Arranging and consenting to educational plans for the child
  • Applying for financial assistance and social services for which the child is eligible
  • Applying for a motor vehicle operator’s license
  • Applying for admission to college
  • Assuming responsibility for activities necessary to ensure the child’s safety, permanency, and well-being
  • Ensuring the maintenance and protection of the child

A kinship legal guardian may not consent to the adoption of the child or a name change for the child. The birth parent of the child shall retain the authority to consent to the adoption of the child or a name change for the child.

The birth parent of the child shall retain the obligation to pay child support. The birth parent of the child shall retain the right to visitation or parenting time with the child, as determined by the court.

The appointment of a kinship legal guardian does not limit or terminate any rights or benefits derived from the child’s parents, including, but not limited to, those relating to inheritance or eligibility for benefits or insurance.

Qualifying the Guardian

Prior to the submission of a petition for appointment as a kinship legal guardian, the caregiver and any adult residing in the caregiver’s household shall undergo:

  • State and Federal criminal history records background checks
  • A domestic violence central registry check
  • A child abuse registry record check

In making its determination about whether to appoint the caregiver as kinship legal guardian, the court shall consider:

  • The potential kinship legal guardian’s ability to provide a safe and permanent home for the child
  • The suitability of the kinship caregiver and the caregiver’s family to raise the child
  • The ability of the kinship caregiver to assume full legal responsibility for the child
  • The commitment of the kinship caregiver and the caregiver’s family to raise the child to adulthood
  • The results from the child abuse record check
  • The results from the criminal history records and domestic violence checks

In any case in which the caregiver petitioning for kinship legal guardianship, or any adult residing in the prospective caregiver’s home, has a record of criminal history or a record of being subjected to a final domestic violence restraining order, the court shall review the record with respect to the type and date of the criminal offense or the provisions and date of the final domestic violence restraining order, and make a determination as to the suitability of the person to become a kinship legal guardian. For the purposes of this paragraph, with respect to criminal history, the court shall consider convictions for offenses specified in § 30:4C-26.8(1)(c)-(e).

Procedures for Establishing Guardianship

A petition for the appointment of a kinship legal guardian shall include a kinship caregiver assessment, which shall include certification from the caregiver that the caregiver has been providing care and support for the child, while the child has been residing in the caregiver’s home, for at least the last 12 consecutive months.

In making its determination about whether to appoint the caregiver as kinship legal guardian, the court shall consider:

  • The best interests of the child
  • The kinship caregiver assessment
  • The recommendation of the Department of Children and Families, including any parenting time or visitation restrictions
  • The wishes of the child’s parents, if known to the court
  • The wishes of the child if the child is age 12 or older, unless unique circumstances exist that make the child’s age irrelevant

The court shall not award kinship legal guardianship of the child solely because of parental incapacity. The court shall appoint the caregiver as kinship legal guardian if, based upon clear and convincing evidence, the court finds that:

  • Each parent’s incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable, or unwilling to perform the regular and expected functions of care and support of the child.
  • The parents’ inability to perform those functions is unlikely to change in the foreseeable future.
  • In cases in which the department is involved with the child, (a) the department exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary, and (b) adoption of the child is neither feasible nor likely.
  • Awarding kinship legal guardianship is in the child’s best interests.
Contents of a Guardianship Order

The court order appointing the kinship legal guardian shall specify, as appropriate, that:

  • A kinship legal guardian shall have the same rights, responsibilities, and authority relating to the child as a birth parent, as specified in § 3B:12-4 above.
  • The birth parent of the child retains the authority to consent to the adoption or a name change for the child.
  • The birth parent of the child retains the obligation to pay child support.
  • The birth parent of the child retains the right to visitation or parenting time with the child, as determined by the court.
  • The appointment of a kinship legal guardian does not limit or terminate any rights or benefits derived from the child’s parents, including, but not limited to, those relating to inheritance or eligibility for benefits or insurance.
Modification/Revocation of Guardianship

Kinship legal guardianship terminates when the child reaches age 18 or when the child is no longer continuously enrolled in a secondary education program, whichever event occurs later, or when kinship legal guardianship is otherwise terminated.

An order or judgment awarding kinship legal guardianship may be vacated by the court prior to the child’s 18th birthday if the court finds that the kinship legal guardianship is no longer in the best interests of the child or, in cases where there is an application to return the child to the parent, based upon clear and convincing evidence, the court finds that the parental incapacity or inability to care for the child that led to the original award of kinship legal guardianship is no longer the case and termination of kinship legal guardianship is in the child’s best interests.

In cases in which the department was involved, when determining whether a child should be returned to a parent, the court may refer a parent for an assessment prepared by the department, in accordance with regulations adopted by the commissioner.

An order or judgment awarding kinship legal guardianship may be vacated by the court if, based upon clear and convincing evidence, the court finds that the guardian has failed or is unable, unavailable, or unwilling to provide proper care and custody of the child, or that the guardianship is no longer in the child’s best interests.

Eligibility for Guardianship Subsidy

A child is eligible for the Division of Youth and Family Services (DYFS) Legal Guardianship Subsidy Program when:

  • The child has been with a relative due to safety or risk of harm issues and DYFS had legal authority for placement through a court order.
  • The relative is related to the child through blood, marriage, adoption, civil union, or domestic partnership, or is a family friend.
  • DYFS made reasonable efforts when required to reunify the child and the parent.
  • DYFS determines that the child cannot be returned to his or her parent and that adoption is neither likely nor feasible.
  • The relative has obtained kinship legal guardianship.
  • The relative’s home meets the program standards articulated below for as long as the subsidy is paid.

A relative interested in being approved for a subsidy must meet the following standards:

  • The relative is at least age 18.
  • No household member has been responsible for an incident of child sexual abuse or child abuse or neglect that caused death or serious injury.
  • The child’s parent does not reside in the relative’s home, unless an exception is made for limited circumstances including, but not limited to, when the parent is a minor or developmentally challenged and not capable of residing independently.
  • The relative’s home is free from safety hazards and can provide appropriate sleeping arrangements for the child.
  • The relative has adequate income to support himself or herself and each household member, so that all money received from the subsidy will be used for the ongoing care of the child.
  • The relative understands the child’s need for protection and permanency and agrees to comply with conditions in the kinship legal guardianship court order regarding safety for the child.
Links to Agency Policies

New Jersey Department of Children and Families, Child Protection and Permanency Policy Manual, Vol. IV: Out-of-Home Placement, see Chapter D, Kinship Legal Guardianship

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

The Department of Children and Families shall initiate a search for relatives who may be willing and able to provide the care and support required by the child in its custody.

The department shall not be required to search for relatives as a placement or permanency option for an abandoned newborn, or other requirements that give preference to relatives, if the identity of the child and parents are unknown.

Requirements for Placement with Relatives

The department shall complete an assessment of each interested relative’s ability to provide the care and support, including placement, required by the child.

In regulation: An applicant seeking to provide kinship care may be approved by the department to care for a child prior to the issuance of a license, provided that all of the following conditions are met:

  • A life/safety inspection of the home reveals no health, safety, or fire hazards in the physical facility of the home and the premises where the home is located.
  • A check of the department’s records of child abuse and neglect reveals that no adult residing in the home has been responsible for an incident of sexual abuse of a child, has been responsible for an incident of child abuse or neglect that caused serious injury or harm to a child, has caused death to a child through abuse or neglect, or has put a child at risk of serious injury or harm.
  • A check of court records reveals that no person residing in the home has been convicted of a crime specified in Statutes § 30:4C-26.8.
  • The applicant submits a Resource Family Parent Home Study/Licensing Application within 5 days following the placement of a child in the home.

The department shall begin the home study immediately after approving the application. If the application is denied, the department shall identify an appropriate alternative placement for the child.

Requirements for Placement of Siblings

When a child is placed outside his or her own home, he or she shall be placed with a relative whenever possible. To the extent possible, the child shall be placed with his or her siblings except where the child’s medical condition or disability would make such a placement clinically inappropriate.

A written visiting plan shall be developed to identify the type and frequency of visits to be instituted for every child in out-of-home placement, unless otherwise directed by the court. The visiting plan is included in the case plan and shall include visits with siblings, if any. Sibling visits may take place with parental visits or separately.

Relatives Who May Adopt

A child may be placed for adoption with a brother, sister, aunt, uncle, grandparent, birth father, or stepparent.

Requirements for Adoption by Relatives

Whenever a petitioner is a brother, sister, grandparent, aunt, uncle, or birth father of the child, the order may limit the investigation to an inquiry concerning the status of the parents of the child and an evaluation of the petitioner.

Upon the request of a surrogate and not more than 30 days prior to the preliminary hearing, a search of the records of the central registry of domestic violence restraining orders, established pursuant to § 2C:25-34, may be conducted to determine whether a prospective adoptive parent or any member of the parent’s household has:

  • Had a domestic violence restraining order entered against them
  • Been charged with a violation of a court order involving domestic violence

A home study that includes a State and Federal criminal history records check and a check of child abuse and neglect records is required for each prospective adoptive parent and each adult residing in the home.

 

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means attempts by an agency to assist parents in remedying the circumstances and conditions that led to placement of the child and to reinforce family structure, including:

  • Consultation with the parent in developing a plan for appropriate services
  • Providing the services agreed upon
  • Informing the parent of the child’s progress, development, and health
  • Facilitating appropriate visitation
When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • Prior to placement, to preserve the family in order to prevent the need for removing the child from the home
  • After placement, to make it possible for the child to return home safely
  • In any case where reunification is not the permanency plan, to place the child in a timely manner and finalize the permanent placement of the child
When Reasonable Efforts Are NOT Required

Reasonable efforts to reunify the child with the family are not required when:

  • The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty, or abandonment.
  • The parent has been convicted of murder or manslaughter of a child; aiding, abetting, or attempting to commit such a crime; or committing or attempting to commit an assault resulting in serious bodily injury to a child.
  • The parent’s parental rights to another child have been terminated involuntarily.

Reasonable efforts to prevent placement are not required when:

  • Removal of the child was necessary due to imminent danger to the child’s life, safety, or health.
  • Efforts to prevent placement were not reasonable due to risk of harm to the child’s health or safety.

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent or legal custodian may petition the court to appoint a standby guardian.

How to Establish a Standby Guardian

A petition for the judicial appointment of a standby guardian of a minor child shall state:

  • The triggering event or events that shall cause the authority of the appointed standby guardian to become effective
  • That there is a significant risk that the parent or legal custodian will die, become incapacitated, or become debilitated as a result of a progressive chronic condition or a fatal illness
  • The name, address, and qualifications of the proposed standby guardian

The parent or legal custodian may choose a standby guardian by means of a written designation that names the standby guardian in the event of the designator’s death, incapacity, or debilitation. The written designation shall reasonably identify the designator, the minor child, and the standby guardian. The written designation shall be signed by the designator in the presence of two witnesses who shall also sign the designation.

The designation shall state the triggering event by which the parent or legal custodian intends the designated standby guardianship of the minor child to be activated. An optional designation form is provided in the statute.

Children who are age 14 or older must be notified and the court will consider their preference.

How Standby Authority is Activated

Upon the occurrence of a triggering event, the standby guardian is empowered to immediately assume his or her duties. If the triggering event is the incapacity or debilitation of the parent or legal custodian, the attending physician shall provide a copy of his determination to the appointed standby guardian.

Within 60 days, the standby guardian must file a petition with the court for confirmation of guardianship. The confirmation petition shall include a determination of incapacity or debilitation or a death certificate, as appropriate.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 3B:12-72
Notice of a hearing must be served to any parent who has parental rights within 30 days of filing the petition. If, after a diligent search, the noncustodial parent cannot be found, the court may proceed.

No notice is required to a parent who is deceased or whose rights have been previously terminated.

Authority Relationship of the Parent and the Standby

Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared authority with the custodial parent or legal custodian of the minor child, unless the petition states otherwise.

Appointment of a standby guardian shall not involuntarily deprive any parent of parental rights.

Withdrawing Guardianship

A standby guardian may decline appointment at any time before the assumption of his or her duties by filing a written statement to that effect with the court, with notice to the petitioner and to the minor child if the latter is age 14 or older.

A parent or legal custodian may revoke a standby guardianship by executing a written revocation, filing it with the court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation.

An unwritten revocation may be considered by the court if the revocation can be proved by clear and convincing evidence submitted to the court.

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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5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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4th Circuit

5th Circuit

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7th Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

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3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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