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

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 Mexico

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused child’ means a child:

  • Who has suffered or is at risk of suffering serious harm because of the action or inaction of the child’s parent, guardian, or custodian
  • Who has suffered physical abuse inflicted or caused by the child’s parent, guardian, or custodian
  • Whose parent, guardian, or custodian has knowingly, intentionally, or negligently placed the child in a situation that may endanger the child’s life or health
  • Whose parent, guardian, or custodian has knowingly or intentionally tortured, cruelly confined, or cruelly punished the child

‘Physical abuse’ includes, but is not limited to, any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling, or death, and:

  • There is no justifiable explanation for the condition or death.
  • The explanation given for the condition or death is inconsistent with the degree or nature of the condition or the nature of the death.
  • Circumstances indicate that the condition or death may not be the product of an accidental occurrence.

‘Great bodily harm’ means an injury to a person that creates a high probability of death, that causes serious disfigurement, or that results in permanent or protracted loss or impairment of the function of a member or organ of the body.

Neglect

‘Neglected child’ means a child:

  • Who has been abandoned by the child’s parent, guardian, or custodian
  • Who is without proper parental care and control or subsistence, education, medical, or other care or control necessary for the child’s well-being because of the faults or habits of the child’s parent, guardian, or custodian or that person’s failure or refusal to provide them
  • Who has been physically or sexually abused when the child’s parent, guardian, or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm
  • Whose parent, guardian, or custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental disorder or incapacity
  • Who has been placed for care or adoption in violation of the law
Sexual Abuse/Exploitation

The term ‘abused child’ includes a child who has suffered sexual abuse or sexual exploitation inflicted by the child’s parent, guardian, or custodian.

‘Sexual abuse’ includes, but is not limited to, criminal sexual contact, incest, or criminal sexual penetration, as those acts are defined by State law.

‘Sexual exploitation’ includes, but is not limited to:

  • Allowing, permitting, or encouraging a child to engage in prostitution
  • Allowing, permitting, encouraging, or engaging a child in obscene or pornographic photographing
  • Filming or depicting a child for obscene or pornographic commercial purposes
Emotional Abuse

The term ‘abused child’ includes a child who has suffered emotional or psychological abuse inflicted or caused by the child’s parent, guardian, or custodian.

Abandonment

Citation: Ann. Stat. § 32A-4-2
‘Abandonment’ includes instances when the parent, without justifiable cause:

  • Left the child without provision for the child’s identification for a period of 14 days
  • Left the child with others, including the other parent or an agency, without provision for support and without communication, for a period of 3 months if the child was younger than age 6 at the commencement of the 3-month period, or 6 months if the child was older than age 6 at the commencement of the 6-month period
Standards for Reporting

Citation: Ann. Stat. § 32A-4-3
A report is required when any person knows or has a reasonable suspicion that the child is abused or neglected.

Persons Responsible for the Child

Responsible persons include the child’s parent, guardian, or custodian.

Exceptions

Nothing in the Children’s Code shall be construed to imply that a child who is being provided with 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, is for that reason alone a neglected child. It is further provided that no child shall be denied the protection afforded to all children under the Children’s Code.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means:

  • An incident of stalking or sexual assault whether committed by a household member or not
  • An incident by a household member against another household member consisting of or resulting in:
    • Physical harm
    • Severe emotional distress
    • Bodily injury or assault
    • A threat causing imminent fear of bodily injury by any household member
    • Criminal trespass
    • Criminal damage to property
    • Repeatedly driving by a residence or work place
    • Telephone harassment
    • Harassment
    • Harm or threatened harm to children

Domestic abuse does not mean the use of force in self-defense or in the defense of another.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Assault against a household member’ consists of:

  • An attempt to commit a battery against a household member
  • Any unlawful act, threat, or menacing conduct that causes a household member to reasonably believe that he or she is in danger of receiving an immediate battery

‘Aggravated assault against a household member’ consists of:

  • Unlawfully assaulting or striking at a household member with a deadly weapon
  • Willfully and intentionally assaulting a household member with intent to commit any felony

‘Assault against a household member with intent to commit a violent felony’ consists of any person assaulting a household member with intent to kill or commit any murder; mayhem; criminal sexual penetration in the first, second, or third degree; robbery; kidnapping; false imprisonment; or burglary.

‘Battery against a household member’ consists of the unlawful, intentional touching or application of force to the person of a household member when done in a rude, insolent, or angry manner.

‘Aggravated battery against a household member’ consists of the unlawful touching or application of force to the person of a household member with intent to injure that person or another.

Persons Included in the Definition

In civil law: ‘Household member’ means:

  • A spouse or former spouse
  • A parent, present or former stepparent, or present or former parent-in-law
  • A grandparent or grandparent-in-law
  • A child, stepchild, or grandchild
  • A coparent of a child
  • A person with whom the petitioner has had a continuing personal relationship

Cohabitation is not necessary to be deemed a household member for purposes of this section.

‘Coparents’ means persons who have a child in common regardless of whether they have been married or have lived together at any time.

In criminal law: ‘Household member’ means:

  • A spouse or former spouse
  • A parent, present or former stepparent, or present or former parent-in-law
  • A grandparent or grandparent-in-law
  • A coparent of a child
  • A person with whom a person has had a continuing personal relationship

Cohabitation is not necessary to be deemed a household member for the purposes of this section.

‘Continuing personal relationship’ means a dating or intimate relationship.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

All records or information concerning a party to a neglect or abuse proceeding, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child’s statement of abuse, or medical reports incident to or obtained as a result of a neglect or abuse proceeding or that were produced or obtained during an investigation in anticipation of or incident to a neglect or abuse proceeding shall be confidential and closed to the public.

Persons or Entities Allowed Access to Records

The records described above shall be disclosed only to the parties and:

  • Court personnel
  • Court-appointed special advocates
  • The child’s guardian ad litem
  • The attorney representing the child in an abuse or neglect action, a delinquency action, or any other action under the Children’s Code
  • Department personnel
  • Any local substitute care review board or any agency contracted to implement local substitute care review boards
  • Law enforcement officials
  • District attorneys
  • Any State government social services agency in any State or, when the department believes it is in the best interests of the child, a government social services agency of another country
  • Persons or entities of an Indian Tribe specifically authorized to inspect the records
  • A foster parent if the records concern the social, medical, psychological, or educational needs of a child currently placed or being considered for placement with that foster parent
  • School personnel if the records concern the child’s social or educational needs
  • Health-care or mental health professionals involved in the evaluation or treatment of the child, the child’s parents, guardian, custodian, or other family members
  • Protection and advocacy representatives
  • Children’s safe house organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department
  • Any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court

A parent, guardian, or legal custodian whose child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports, or other investigative or diagnostic evaluation. Any identifying information related to the reporting party or any other party providing information shall be deleted. The parent, guardian, or legal custodian also shall have the right to the results of the investigation and the right to petition the court for full access to all department records and information except those records and information the department finds would be likely to endanger the life or safety of any person providing information to the department.

When Public Disclosure of Records is Allowed

After learning that there is reasonable suspicion that a child fatality was caused by abuse or neglect, the department shall release the following information within 5 business days:

  • The age and gender of the child
  • The date of death
  • Whether the child was in foster care or in the home of the child’s parent or guardian at the time of death
  • Whether an investigation is being conducted by the department

Upon completion of a child abuse or neglect investigation into a child’s death, if it is determined that abuse or neglect caused the child’s death, the following documents shall be released upon request:

  • A summary of the department’s investigation
  • A law enforcement investigation report, if in the department’s possession
  • A medical examiner’s report, if in the department’s possession

Prior to releasing any document, the department shall consult with the district attorney and shall redact:

  • Information that would, in the opinion of the district attorney, jeopardize a criminal investigation or proceeding
  • Identifying information related to a reporting party or any other party providing information
  • Information that is privileged, confidential, or not subject to disclosure pursuant to any other State or Federal law

Once documents have been released, the department may comment on the case within the scope of the release. Information released by the department consistent with the requirements of this section does not require prior notice to any other individual.

Nothing in this section shall be construed as requiring the department to obtain documents that are not in the abuse and neglect case file.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone reporting an instance of alleged child neglect or abuse, or participating in a judicial proceeding brought as a result of a report required by the reporting laws, is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by the law, unless the person acted in bad faith or with malicious purpose.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who knows or has reasonable suspicion that a child is abused or neglected shall report the matter immediately.

Content of Reports

The written report shall contain:

  • The names and addresses of the child and the child’s parents, guardian, or custodian
  • The child’s age
  • The nature and extent of the child’s injuries, including any evidence of previous injuries
  • Any other information that the reporter believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports shall be made to:

  • A local law enforcement agency
  • The Children, Youth and Families Department
  • The Tribal law enforcement or social services agency for an Indian child residing in Indian country

A law enforcement agency receiving the report shall immediately transmit the facts of the report by telephone to the department and a written report within 48 hours. The department shall immediately transmit the facts of the report by telephone to a local law enforcement agency and a written report within 48 hours.

Initial Screening Decisions

The purpose of child protective services (CPS) intake is to:

  • Receive reports of alleged child abuse or neglect
  • Determine if the situation reported may constitute abuse or neglect as defined by law
  • Determine if an investigation by CPS and a referral to another agency is warranted

The intake workers shall prioritize accepted reports as follows:

  • Emergency report (E): A report alleging a serious and immediate safety threat involving a vulnerable child, including but not limited to, an abandoned infant; any physical injury to an infant; a potentially life-threatening situation; recent sexual abuse; a law enforcement request for immediate response; and recent serious trauma, such as a head injury, burns, or broken bones. A report prioritized as an emergency requires that an investigation be initiated within 3 hours.
  • Priority 1 report (P1): A report alleging physical injury involving a vulnerable child who is in a safe environment at the time of the report, or a report alleging a serious impending safety threat involving a vulnerable child but where the alleged perpetrator will not have access to the child for the next 24 hours. A P1 report requires that an investigation be initiated within 24 hours.
  • Priority 2 report (P2): A report alleging an impending safety threat involving a vulnerable child with no immediate concern for the child’s safety. This may include, but is not limited to, alleged physical abuse with no indication of injury or alleged abuse or neglect when the alleged perpetrator no longer has access to the child or a protective parent or guardian has already intervened. A P2 report requires that an investigation be initiated within 5 calendar days.
Agency Conducting the Assessment/Investigation

The recipient of a report shall take immediate steps to ensure prompt investigation of the report and take steps to protect the health or welfare of the alleged child victim, as well as any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities, or child care facilities. Reports alleging neglect or abuse shall be referred to the department, which shall conduct an investigation to determine the best interests of the child with regard to any action to be taken.

Assessment/Investigation Procedures

The caseworker shall conduct the investigation in a manner that protects the privacy of the child and family. The caseworker shall:

  • Make efforts to engage the family in the investigation and assessment process
  • Gather the information required to identify the safety threats, child vulnerabilities, protective capacities, and ongoing risks of harm to the child
  • Interview collateral contacts
  • Visit the home
  • Complete safety and risk assessments
  • Make efforts to provide or arrange for services for the child and family during the investigation to enhance the family’s capacity to safely care for their child

At the time of initial contact with the parents, guardian, or alleged perpetrator, the caseworker shall inform him or her of the reported allegations in a manner consistent with laws protecting the rights of the reporter.

Timeframes for Completing Investigations

The caseworker shall complete the investigation within 45 days of accepting the report for investigation unless an extension is approved by the supervisor. Extensions are not to exceed an additional 30 days after the original 45 days have passed.

Classification of Reports

The caseworker shall complete the investigation and decide whether the report’s allegations of abuse or neglect are substantiated or unsubstantiated.

In a substantiated report, there is an allegation of child abuse or neglect in which a parent, guardian, foster parent, preadoptive parent, or treatment foster care parent has been identified as the perpetrator or as failing to protect the child, and credible evidence exists to support the investigation worker’s conclusion that the child has been abused or neglected, as defined in the Children’s Code. Credible evidence upon which to base a finding of substantiation may include, but is not limited to:

  • A parent or guardian’s admission
  • Physical evidence
  • Collateral or witness statements and observations
  • A child’s disclosure
  • The investigation worker’s observation

In an unsubstantiated report, there is an allegation of child abuse or neglect in which the information collected during the investigation does not support a finding that the child was abused or neglected.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Professionals required to report include:

  • Physicians, residents, or interns
  • Law enforcement officers or judges
  • Nurses
  • Teachers or school officials
  • Social workers
  • Members of the clergy
Reporting by Other Persons

Every person who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when a person knows or has a reasonable suspicion that a child is abused or neglected.

Privileged Communications

A clergy member need not report any information that is privileged.

The report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.

Inclusion of Reporter’s Name in Report

The identity of the mandated reporter will be verified before any investigation is initiated.

Disclosure of Reporter Identity

Any release of information to a parent, guardian, or legal custodian shall not include identifying information about the reporter.

 

Parental Drug Use as Child Abuse

To better understand this issue and to view it across States, download the PDF (554 KB) of this publication.

Current Through April 2015

Evidence that demonstrates that a child has been knowingly, intentionally, or negligently allowed to enter or remain in a motor vehicle, building, or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.

Evidence that demonstrates that a child has been knowingly and intentionally exposed to the use of methamphetamine shall be deemed prima facie evidence of abuse of the child.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

At the inception of an abuse and neglect proceeding, the court shall appoint a guardian ad litem (GAL) for a child younger than age 14. If the child is age 14 or older, the court shall appoint an attorney for the child.

When a child reaches age 14, the child’s GAL shall continue as the child’s attorney. The court shall appoint a different attorney for the child if:

  • The child requests a different attorney.
  • The GAL requests to be removed.
  • The court determines that the appointment of a different attorney is appropriate.
The Use of Court-Appointed Special Advocates (CASAs)

A court-appointed special advocate (CASA) is a person who, pursuant to the provisions of the Children’s Court Rules, assists the court in determining the best interests of the child by investigating the case and submitting a report to the court.

Qualifications/Training

A GAL shall be an attorney appointed by the Children’s Court to represent and protect the best interests of the child in a court proceeding. No party or employee or representative of a party to the proceeding shall be appointed to serve as a GAL.

No officer or employee of an agency that is vested with the legal custody of the child shall be appointed as GAL or attorney for the child. Only an attorney with appropriate experience shall be appointed as GAL of or attorney for the child.

When reasonable and appropriate, the court shall appoint a GAL or attorney who is knowledgeable about the child’s particular cultural background. Attorneys and attorney GALs may receive periodic training on a child’s psychological and physical development as well as the impact of ethnicity on the child’s needs.

Specific Duties

A GAL shall zealously represent the child’s best interests in the proceeding for which the GAL has been appointed and in any subsequent appeals. After consultation with the child, a GAL shall convey the child’s declared position to the court at every hearing. Unless a child’s circumstances render the following duties and responsibilities unreasonable, a GAL shall:

  • Meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews, and any other hearings scheduled in accordance with the Children’s Code
  • Communicate with health-care, mental health care, and other professionals involved with the child’s case
  • Review medical and psychological reports relating to the child and the respondents
  • Contact the child prior to any proposed change in the child’s placement
  • Contact the child after changes in the child’s placement
  • Attend local substitute care review board hearings concerning the child and, if unable to attend the hearings, forward to the board a letter setting forth the child’s status during the period since the last board review and include an assessment of the Children, Youth and Families Department’s permanency and treatment plans
  • Report to the court on the child’s adjustment to placement, the department’s and respondent’s compliance with prior court orders and treatment plans, and the child’s degree of participation during visitations
  • Represent and protect the cultural needs of the child

A GAL shall receive notices, pleadings, or other documents required to be provided to or served upon a party. A GAL may file motions and other pleadings and take other actions consistent with the GAL’s powers and duties.

How the Representative Is Compensated

Reasonable compensation for services and related expenses of a GAL or a child’s attorney shall be a charge upon the funds of the court upon their certification by the court.

The court may order the parent or other person legally obligated to care for and support a child to pay all or part of the costs and expenses of a GAL or attorney when:

  • The child has been found to be an abused or neglected child.
  • The parent or other person legally obligated to care for and support a child is given notice and a hearing to determine the parent or person’s financial ability to pay the costs and expenses.
  • The court finds that the parent or person is able to pay all or part of the costs and expenses.

Unless otherwise ordered, payment shall be made to the court for remittance to those to whom compensation is due or, if costs and expenses have been paid by the court, to the court for remittance to the State. The court may prescribe the manner of payment.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Prior to the dispositional hearing, a written family services plan must be prepared for submission to the court.

Who May Participate in the Case Planning Process

The department shall prepare the family services plan. A copy of the plan shall be provided by the department to all parties at least 5 days before the dispositional hearing.

When the child is an Indian child, contact shall be made with the child’s Indian Tribe for the purpose of consultation and exchange of information, and the plan shall indicate the person contacted in the child’s Indian Tribe and the results of that contact.

Contents of a Case Plan

The plan for family services shall contain the following information:

  • A statement of the problem
  • The needs of the child and the family
  • A description of the specific progress needed to be made by both the parent and the child, the reasons why the plan is likely to be useful, the availability of any proposed services, and the department’s overall plan for ensuring that the services will be delivered
  • If removal from the home or continued residence outside of the home is recommended for the child:
    • A statement of the likely harm the child will suffer as a result of removal from the home, including emotional harm resulting from separation from the child’s parents
    • A description of any previous efforts to work with the parent and the child in the home and a description of any in-home treatment programs that have been considered and rejected
    • A description of the steps that will be taken to minimize any harm to the child that may result if separation from the child’s parent occurs or continues
    • For a child age 16 or older, a description of the specific skills the child requires for successful transition into independent living as an adult, what programs are necessary to develop the skills, the reasons why the programs are likely to be useful, the availability of any proposed programs, and the department’s overall plan for ensuring that the child will be adequately prepared for adulthood

 

Concurrent Planning for Permanency for Children

To better understand this issue and to view it across States, download the PDF (295 KB) of this publication.

Current Through November 2012

‘Concurrent plan’ means a second permanency plan in addition to a primary permanency plan of reunification.

‘Concurrent plan’ refers to case planning and legal practices providing reunification services while simultaneously implementing an alternative case plan should the reunification efforts be unsuccessful.

The department develops a concurrent plan when it is indicated by the concurrent plan assessment. Any of the approved permanency plan goals may be appropriate as a permanency goal for the concurrent plan. The concurrent plan is implemented concurrently with the permanency plan and becomes the treatment plan whenever the court determines this is in the child’s best interests.

During the time that reasonable efforts are being made to reunify the child and family, the Children, Youth, and Families Department also may concurrently make reasonable efforts to finalize one of the other permanency plans (adoption, permanent guardianship, permanent placement with a fit and willing relative, or planned permanent living arrangement) for the child.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

An initial judicial review shall be conducted within 60 days of the disposition. Subsequent periodic reviews shall be conducted within 6 months of the permanency hearing and every 6 months thereafter.

A permanency hearing shall be held:

  • Within 6 months of the initial judicial review or within 12 months of a child entering foster care, whichever occurs first
  • Within 30 days of a determination that no reasonable efforts at reunification are required
Persons Entitled to Attend Hearings

The children’s court attorney shall give notice of any judicial review hearing to:

  • All parties
  • The child through the child’s guardian ad litem or attorney
  • The child’s court-appointed special advocate
  • A contractor administering the local substitute care review board
  • The child’s foster parent or substitute care provider

At any judicial review hearing, the Children, Youth and Families Department; the child’s guardian ad litem or attorney; and all parties who have been given notice shall have the opportunity to present evidence and to cross-examine witnesses.

Determinations Made at Hearings

At the review hearing, the court shall determine:

  • The extent to which the treatment plan has been implemented
  • The extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child
  • For an Indian child, whether the placement preferences of the child’s Tribe were followed, and whether the child’s treatment plan provides for maintaining the child’s cultural ties

If the court adopts a permanency plan other than reunification, the court shall determine whether the department has made reasonable efforts to identify and locate all grandparents and other relatives. The court shall also determine whether the department has made reasonable efforts to conduct home studies on any appropriate relative expressing an interest in providing permanency for the child. The court must ensure that consideration has been given to the child’s familial identity and connections. If the court finds that reasonable efforts have not been made to identify or locate grandparents and other relatives or to conduct home studies on appropriate and willing relatives, the court shall schedule a permanency review within 60 days to determine whether an appropriate relative placement has been made.

Permanency Options

At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child:

  • Reunification
  • Placement for adoption
  • Placement with a permanent guardian
  • Placement in the legal custody of the department with the child placed in the home of a fit and willing relative
  • Placement in the legal custody of the department under a planned permanent living arrangement, provided that there is substantial evidence that none of the above plans is appropriate for the child

 

Determining the Best Interests of the Child

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Current Through March 2016

The Children’s Code shall be interpreted and construed to effectuate the following legislative purposes:

  • First, to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this code, and then to preserve the unity of the family, whenever possible
  • To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced
  • To provide a continuum of services for children and their families from prevention to treatment, considering, whenever possible, prevention, diversion, and early intervention, particularly in the schools
  • To provide children with services that are sensitive to their cultural needs
  • To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention, and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of the child victim
  • To provide continuity for children and families appearing before the family court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family

The child’s health and safety shall be the paramount concerns. Permanent separation of the child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit.

In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court shall terminate parental rights when:

  • The child has been abandoned.
  • The child has been neglected or abused, and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.
  • The parent has subjected the child to aggravated circumstances.
  • The child has been placed in the care of others, including care by other relatives, either by a court order or otherwise, and the following conditions exist:
    • The child has lived in the home of others for an extended period of time.
    • The parent-child relationship has disintegrated.
    • A psychological parent-child relationship has developed between the substitute family and the child.
    • If the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent.
    • The substitute family desires to adopt the child.

‘Aggravated circumstances’ include circumstances in which the parent has:

  • Attempted, conspired to cause, or caused great bodily harm to the child or great bodily harm or death to the child’s sibling
  • Attempted, conspired to cause, or caused great bodily harm or death to another parent, guardian, or custodian of the child
  • Attempted, conspired to subject, or subjected the child to torture, chronic abuse, or sexual abuse
  • Had his or her parental rights over a sibling of the child terminated involuntarily
Circumstances That Are Exceptions to Termination of Parental Rights

The Children, Youth and Families Department shall file a motion to terminate parental rights when a child has been in the custody of the department for not less than 15 of the previous 22 months unless:

  • A parent has made substantial progress toward eliminating the problem that caused the child’s placement in foster care, it is likely that the child will be able to safely return to the parent’s home within 3 months, and the child’s return to the parent’s home will be in the child’s best interests.
  • The child has a close and positive relationship with a parent, and a permanent plan that does not include termination of parental rights will provide the most secure and appropriate placement for the child.
  • The child is age 14 or older, is firmly opposed to termination of parental rights, and is likely to disrupt an attempt to place him with an adoptive family.
  • A parent is terminally ill but in remission and does not want his or her parental rights to be terminated, and the parent has designated a guardian for his or her child.
  • The child is not capable of functioning if placed in a family setting. In such a case, the court shall reevaluate the status of the child every 90 days unless there is a final court determination that the child cannot be placed in a family setting.
  • Grounds do not exist for termination of parental rights.
  • The child is an unaccompanied, refugee minor, and the situation regarding the child involves international legal issues or compelling foreign policy issues.
  • Adoption is not an appropriate plan for the child.
  • The parent’s incarceration or participation in a court-ordered residential substance abuse treatment program constitutes the primary factor in the child’s placement in substitute care, and termination of parental rights is not in the child’s best interests.
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

As used in the Kinship Guardianship Act:

  • The term ‘caregiver’ means an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance, and supervision consistent with the duties and responsibilities of a parent of the child.
  • The term ‘kinship’ means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s Tribe or clan, or an adult with whom the child has a significant bond.
  • The term ‘relative’ means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, any person denoted by the prefix ‘grand’ or ‘great,’ or the spouse or former spouse of the persons specified.
Purpose of Guardianship

It is the policy of the State that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance, and supervision to a child, it is the policy of the State that, whenever possible, a child should be raised by family members or kinship caregivers.

The Kinship Guardianship Act is intended to address those cases where a parent has left a child or children in the care of another for 90 consecutive days and that arrangement leaves the child or children without appropriate care, guidance, or supervision. The purposes of the Kinship Guardianship Act are to:

  • Establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent
  • Provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally, and emotionally to the maximum extent possible, when the child’s parents are not willing or able to provide appropriate care

The court may establish a permanent guardianship between a child and the guardian when the prospective guardianship is in the child’s best interests and when:

  • The child has been adjudicated as an abused or neglected child.
  • The Children, Youth and Families Department has made reasonable efforts to reunite the parent and child, and further efforts by the department would be unproductive.
  • Reunification of the parent and child is not in the child’s best interests because the parent continues to be unwilling or unable to properly care for the child.
  • The likelihood of the child being adopted is remote, or it is established that termination of parental rights is not in the child’s best interests.
A Guardian’s Rights and Responsibilities

A guardian appointed for a child pursuant to the Kinship Guardianship Act has the legal rights and duties of a parent, except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.

Unless otherwise ordered by the court, a guardian appointed pursuant to the Kinship Guardianship Act has authority to make all decisions regarding visitation between a parent and the child.

Qualifying the Guardian

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

Procedures for Establishing Guardianship

In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child.

Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that if the child is in the legal custody of the department, the department grants consent to the guardianship. The court shall appoint a person nominated by the child, if the child is age 14 or older, unless the court finds the appointment contrary to the best interests of the child.

A motion for permanent guardianship may be filed by any party. A petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act may be filed only by:

  • A kinship caregiver
  • A caregiver who is age 21 or older, with whom no kinship with the child exists, and who has been nominated to be guardian of the child by the child who age 14 or older
  • A caregiver designated formally or informally by a parent

A guardian may be appointed pursuant to the Kinship Guardianship Act only if:

  • A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn.
  • A parent of the child is living, but all parental rights in regard to the child have been terminated or suspended by prior court order.
  • The child has resided with the petitioner without the parent for a period of 90 days or more immediately preceding the date the petition is filed, and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child or there are extraordinary circumstances.
  • No guardian of the child is currently appointed pursuant to the Uniform Probate Code.
Contents of a Guardianship Order

A certified copy of the court order appointing a guardian pursuant to the Kinship Guardianship Act shall be satisfactory proof of the authority of the guardian, and letters of guardianship need not be issued.

A judgment of the court vesting permanent guardianship with an individual divests the biological or adoptive parent of legal custody or guardianship of the child, but is not a termination of the parent’s rights. A child’s inheritance rights from and through the child’s biological or adoptive parents are not affected by this proceeding.

Upon a finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings, or other relatives of the child and any other provision necessary to rehabilitate the child or provide for the child’s continuing safety and well-being.

Modification/Revocation of Guardianship


Any person, including a child who has reached his or her 14th birthday, may move for revocation of a guardianship created pursuant to the Kinship Guardianship Act. The person requesting revocation shall attach to the motion a transition plan proposed to facilitate the reintegration of the child into the home of a parent or a new guardian. A transition plan shall take into consideration the child’s age, development, and any bond with the guardian.

If the court finds that a preponderance of the evidence proves a change in circumstances and the revocation is in the best interests of the child, it shall grant the motion and:

  • Adopt a transition plan proposed by a party or the child’s guardian ad litem
  • Propose and adopt its own transition plan
  • Order the parties to develop a transition plan by consensus, if they will agree to do so

The court shall retain jurisdiction to enforce its judgment of permanent guardianship. Any party may make a motion for revocation of the order granting guardianship when there is a significant change of circumstances, including:

  • The child’s parent is able and willing to properly care for the child.
  • The child’s guardian is unable to properly care for the child.

The court shall appoint a guardian ad litem for the child in all proceedings for the revocation of permanent guardianship if the child is under age 14. The court shall appoint an attorney for the child in all proceedings for the revocation of permanent guardianship if the child is age 14 or older at the inception of the proceedings.

The court may revoke the order granting guardianship when a significant change of circumstances has been proven by clear and convincing evidence and it is in the child’s best interests to revoke the order granting guardianship.

Eligibility for Guardianship Subsidy

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

Links to Agency Policies

Kinship guardianship is not addressed in regulation or agency policy.

 

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Prior to holding a dispositional hearing, the court shall direct that a predisposition study and report be submitted in writing to the court by the department. The predisposition study shall determine:

  • Whether the child has a family member who, subsequent to study by the department, is determined to be qualified to care for the child
  • If the child is an Indian child, whether the placement preferences set forth in the Federal Indian Child Welfare Act of 1978 [25 U.S.C. § 1901, et seq.] or the placement preferences of the child’s Indian Tribe were followed and whether the child’s treatment plan provides for maintaining the child’s cultural ties

A relative within the fifth degree of relation or a stepparent with whom the child has resided may petition to be a party at any stage of a child abuse or neglect proceeding.

Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that the Children, Youth and Families Department grants consent to the guardianship if the child is in the legal custody of the department. In any foster care or preadoptive placement of an Indian child, preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the Indian child’s extended family.

For the Kinship Guardianship Act:

  • The term ‘kinship’ means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s Tribe or clan, or an adult with whom the child has a significant bond.
  • The term ‘relative’ means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, any person denoted by the prefix ‘grand’ or ‘great,’ or the spouse or former spouse of the persons specified.
Requirements for Placement with Relatives

In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child.

A guardian may be appointed pursuant to the Kinship Guardianship Act only if one of the following is true:

  • A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn.
  • A parent of the child is living, but all parental rights in regard to the child have been terminated or suspended by prior court order.
  • The child has resided with the petitioner without the parent for a period of 90 days or more, and the parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child.

In regulation: Regulations regarding background checks do not apply to foster grandparent volunteers or relative care providers who are not otherwise required to be licensed or registered.

Requirements for Placement of Siblings

At the conclusion of the dispositional hearing, the court shall make and include in the dispositional judgment its findings on whether reasonable efforts were made by the department to place siblings in custody together, unless such joint placement would be contrary to the safety or well-being of any of the siblings in custody, and whether any siblings not jointly placed have been provided reasonable visiting rights or other ongoing interaction, unless such visits or other ongoing interaction would be contrary to the safety or well-being of any of the siblings.

The court may order reasonable visits between a child placed in the custody of the department and the child’s siblings or any other person who may significantly affect the child’s best interests if the court finds the visits to be in the child’s best interests.

Relatives Who May Adopt

Any relative within the fifth degree of relation to the child or that relative’s spouse may seek to adopt the child.

Requirements for Adoption by Relatives

The child must have lived with the relative or the relative’s spouse for at least 1 year prior to the filing of the petition.

Unless directed by the court, a preplacement study is not required in cases in which a child is being adopted by a stepparent, relative, or person named in the child’s deceased parent’s will.

Nationwide criminal history record checks shall be conducted on all prospective foster or adoptive parents and other adult relatives and nonrelatives residing in the prospective foster or adoptive parent’s household.

 

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

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Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts may include:

  • An intervention plan designed to achieve placement of the child in the least restrictive setting available, consistent with the best interests and special needs of the child, including a statement of the likely harm the child may suffer as a result of being removed from the parents’ home, including emotional harm that may result due to separation from the child’s parents, and a statement of how the intervention plan is designed to place the child in close proximity to the parents’ home without causing harm to the child due to separation from parents, siblings, or any other person who may significantly affect the child’s best interests
  • Services offered to the child, his or her family, and the foster care family
When Reasonable Efforts Are Required

Reasonable efforts shall be made:

  • To prevent the removal of the child from the child’s family
  • To reunite the child with the child’s family
  • To place siblings in custody together, unless such joint placement would be contrary to the safety or well-being of any of the siblings in custody
  • For siblings not jointly placed, to provide reasonable visitation or other ongoing interaction unless visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings
  • To implement and finalize the permanency plan in a timely manner when reasonable efforts to reunify are not required
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required when:

  • The efforts would be futile.
  • The parent has subjected the child to aggravated circumstances.

Aggravated circumstances are those in which the parent, guardian, or custodian has:

  • Attempted, conspired to cause, or caused great bodily harm to the child or great bodily harm or death to the child’s sibling
  • Attempted, conspired to cause, or caused great bodily harm or death to another parent, guardian, or custodian of the child
  • Attempted, conspired to subject, or has subjected the child to torture, chronic abuse, or sexual abuse
  • Had parental rights over a sibling of the child terminated involuntarily

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

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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

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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

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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

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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

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7th Circuit

8th Circuit

9th Circuit

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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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