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

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 York

 

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 younger than age 18 whose parent or other person legally responsible for his or her care:

  • Inflicts or allows to be inflicted upon such child physical injury by other than accidental means that causes or creates a substantial risk of death, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ
  • Creates or allows to be created a substantial risk of physical injury to such child by other than accidental means that would be likely to cause death, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ
Neglect

‘Neglected child’ means a child younger than age 18 whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care:

  • In supplying the child with adequate food, clothing, shelter, education, or medical or surgical care, although financially able to do so or offered financial or other reasonable means to do so
  • In providing the child with proper supervision or guardianship
  • By unreasonably inflicting or allowing harm to be inflicted, or a substantial risk thereof, including the infliction of excessive corporal punishment
  • By misusing drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions
  • By any other acts of a similarly serious nature requiring the aid of the court
Sexual Abuse/Exploitation

The term ‘abused child’ includes a child younger than age 18 whose parent or other person legally responsible for his or her care commits, or allows to be committed, an act of sexual abuse against such child, as defined in penal law.

The term ‘abused child’ also includes a child younger than age 18 whose parent or other person legally responsible for his care:

  • Commits or allows to be committed any sex offense against the child, as defined in article 130 of the penal law, including sexual misconduct, rape, and sexual abuse
  • Allows, permits, or encourages the child to engage in child prostitution, as described in §§ 230.25, 230.30, and 230.32 of the penal law
  • Commits an act of incest, as described §§ 255.25, 255.26, and 255.27 of the penal law
  • Allows the child to engage in acts or conduct to produce, promote, or possess child pornography, as described in article 263 of the penal law
Emotional Abuse

‘Impairment of emotional health’ and ‘impairment of mental or emotional condition’ includes a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, acting out, or misbehavior, including incorrigibility, ungovernability, or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.

Abandonment

Citation: Soc. Serv. Law § 384-b
A child is ‘abandoned’ by his or her parent if such parent evinces an intent to forgo his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.

Standards for Reporting

Citation: Soc. Serv. Law § 413
A report is required when a mandatory reporter has reasonable cause to suspect that a child coming before him or her in his or her professional or official capacity is an abused or maltreated child.

Persons Responsible for the Child

Responsible persons include the child’s parent and other persons legally responsible for the child’s care.

The term ‘person legally responsible’ includes the child’s custodian, guardian, and any other person responsible for the child’s care at the relevant time. A custodian may include a person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.

Exceptions

When the parent is voluntarily and regularly participating in a rehabilitative program, evidence that the parent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

The term ‘victim of domestic violence’ means any person over age 16, any married person, or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of an act that would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; and:

  • Such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child.
  • Such act or acts are or are alleged to have been committed by a family or household member.
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

This issue is not addressed in the statutes reviewed.

Persons Included in the Definition

The term ‘family or household members’ means the following individuals:

  • Persons related by consanguinity or affinity
  • Persons legally married to one another
  • Persons formerly married to one another regardless of whether they still reside in the same household
  • Persons who have a child in common regardless of whether such persons are married or have lived together at any time
  • Unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household
  • Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time
  • Any other category of individuals deemed to be a victim of domestic violence as defined by the Office of Children and Family Services in regulation

Factors that may be considered in determining whether a relationship is an ‘intimate relationship’ include, but are not limited to:

  • The nature or type of relationship regardless of whether the relationship is sexual in nature
  • The frequency of interaction between the persons
  • The duration of the relationship

Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an intimate relationship.

‘Parent’ means a natural or adoptive parent or any individual lawfully charged with a minor child’s care or custody.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Reports made pursuant to this title as well as any other information obtained, reports written, or photographs taken concerning such reports in the possession of the Office of Children and Family Services or local departments shall be confidential.

Persons or Entities Allowed Access to Records

Reports and information shall be made available to:

  • A physician who reasonably suspects that a child may be abused or maltreated
  • A person authorized to place a child in protective custody when it is needed to determine whether to place the child in protective custody
  • A duly authorized agency having the responsibility for the care or supervision of a child who is reported to the central register
  • Any person who is the subject of the report or other persons named in the report
  • A court when it is necessary for the determination of an issue before it
  • A grand jury when it is necessary for the determination of charges
  • Any appropriate State legislative committee responsible for child protective legislation
  • Any person engaged in bona fide research
  • A provider agency or a licensing agency
  • The Justice Center for the Protection of People with Special Needs in connection with an investigation being conducted by the center
  • A probation service conducting an investigation in which there is reason to suspect the child or the child’s sibling may have been maltreated and such child or sibling, parent, guardian, or other person legally responsible for the child is a person named in an indicated report
  • A district attorney, an assistant district attorney, investigator, an officer of the State police, the regional State park police, a city police department, or a sheriff’s office when such information is necessary to conduct a criminal investigation or prosecution of a person
  • The New York City Department of Investigation
  • A provider or coordinator of services to which a child or a child’s family have been referred when it is necessary to enable the provider or coordinator to establish and implement a plan of service for the child or the child’s family, to monitor the provision and coordination of services, or to directly provide services
  • A disinterested person making an adoption investigation
  • A criminal justice agency conducting an investigation of a missing child where there is reason to suspect such child or such child’s sibling, parent, guardian, or other person legally responsible for such child is a person named in an indicated report of child maltreatment and that such information is needed to further such investigation
  • A child protective service of another State when necessary to conduct a child abuse investigation within its jurisdiction
  • An attorney appointed to represent the child
  • A child care resource and referral program
  • Officers and employees of the State comptroller, the city comptroller of the city of New York, or the county officer for purposes of a duly authorized performance audit
  • Members of a local or regional fatality review team, a local or regional multidisciplinary investigative team, or a citizen review panel
  • An entity with appropriate legal authority in another State to license, certify, or otherwise approve prospective foster and adoptive parents when disclosure of information regarding the prospective foster or adoptive parents and other persons over age 18 residing in the home of such prospective parents is required by Federal law
  • A social services official who is investigating whether an adult is in need of protective services when such official has reasonable cause to believe that adult may be in need of protective services due to the conduct of an individual or individuals who had access to the adult when the adult was a child
When Public Disclosure of Records is Allowed

A commissioner may disclose information regarding the abuse or maltreatment of a child when such disclosure shall not be contrary to the best interests of the child, the child’s siblings, or other children in the household, and any one of the following factors is present:

  • The subject of the report has been charged with committing a crime related to a report maintained in the statewide central register.
  • The investigation of the abuse or maltreatment of the child by the local child protective service or the provision of services by such service has been publicly disclosed in a report required to be disclosed in the course of their official duties, by a law enforcement agency or official, a district attorney, any other State or local investigative agency or official, or by a judge of the unified court system.
  • There has been a prior knowing, voluntary, public disclosure by an individual concerning a report of child abuse or maltreatment in which such individual is named as the subject of the report.
  • The child named in the report has died, or the report involves the near fatality of a child.
Use of Records for Employment Screening

Chief executive officers of authorized agencies, directors of daycare centers, and directors of facilities operated or supervised by the Department of Education, the Division for Youth, the Office of Mental Health, or the Office of Mental Retardation and Developmental Disabilities, may access the information in records and reports in connection with a disciplinary investigation, action, or administrative or judicial proceeding instituted by any of such officers or directors against an employee of any such agency, center, or facility who is the subject of an indicated report when the incident of abuse or maltreatment contained in the report occurred in the agency, center, facility, or program, and the purpose of such proceeding is to determine whether the employee should be retained or discharged.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, official, or institution participating in good faith in making a report, the taking of photographs, or the removal or keeping of a child pursuant to this title, or the disclosure of Child Protective Services information in compliance with child reporting laws, shall have immunity from any civil or criminal liability that might otherwise result by reason of such actions.

For the purpose of any civil or criminal proceeding, the good faith of any such person, official, or institution required to report cases of child abuse or maltreatment or providing a reporting procedure service shall be presumed–provided that person, official, or institution was acting in the discharge of their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person, official, or institution.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Mandated reporters shall immediately make an oral or electronic report to the statewide central register when they have reasonable cause to suspect that a child has been abused or neglected by a person responsible for that child’s care. Oral reports shall be followed by written reports within 48 hours.

Content of Reports

Written reports shall be made in a manner prescribed and on forms supplied by the commissioner of the Office of Children and Family Services and shall include the following information:

  • The names and addresses of the child and the child’s parents or other person responsible for the child’s care
  • The child’s age, sex, and race
  • The nature and extent of any injury, abuse, or maltreatment, including any evidence of prior injuries, abuse, or maltreatment to the child or the child’s siblings
  • The name of the person or persons alleged to be responsible for causing the injury, abuse, or maltreatment, if known
  • Family composition
  • The source of the report
  • The name and contact information of the person making the report
  • Actions taken by the reporting source
  • Any other information that the reporter believes may be helpful or required by regulation
Reporting Suspicious Deaths

Any mandated reporter, including workers of the local child protective service agency or an official of the State agency responsible for investigation of a report of abuse or maltreatment of a child in residential care, who has reasonable cause to suspect that a child has died as a result of abuse or maltreatment shall report that fact to the appropriate medical examiner or coroner.

The medical examiner or coroner shall accept the report for investigation and shall issue a preliminary written report of his or her findings within 60 days of the date of death, absent extraordinary circumstances, and his or her final written report promptly to the police, the appropriate district attorney, the local child protective service, the Office of Children and Family Services, and, if the institution making the report is a hospital, the hospital. The Office of Children and Family Services shall promptly provide a copy of the preliminary and final reports to the statewide central register of child abuse and maltreatment.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Oral reports shall be made to the statewide central register of child abuse and maltreatment unless the appropriate local plan for the provision of child protective services provides that oral reports should be made to the local child protective service.

Initial Screening Decisions

Any social services district may, upon the authorization of the Office of Children and Family Services, establish a program that implements differential responses to reports of child abuse and maltreatment.

The criteria for determining which cases may be placed in the assessment track shall be determined by the local department of social services, except that reports including any criminal allegations such as a sex offense, including prostitution, incest, or child pornography; assault of a child; murder or manslaughter; child abandonment; or severe, repeated abuse or neglect shall not be included in the assessment track of a differential response program.

For all cases included in the family assessment and services track:

  • Reports taken at the statewide central register of child abuse and maltreatment shall be transmitted to the appropriate local child protective service.
  • A social services district shall, consistent with the criteria for the program, identify those reports that are initially eligible to be included in the family assessment and services track.
Agency Conducting the Assessment/Investigation

Every local department of social services shall establish a child protective service within the department with the responsibility to conduct investigations of reports of child maltreatment.

For those reports that are included in the family assessment and services track, the social services district shall conduct the family assessments.

Assessment/Investigation Procedures

Upon receipt of a report, each child protective service shall commence, within 24 hours, an appropriate investigation that shall include:

  • An evaluation of the environment of the child named in the report and any other children in the same home
  • A determination of the risk to such children if they continue to remain in the existing home environment
  • A determination of the nature, extent, and cause of any condition enumerated in the report
  • The names, ages, and conditions of other children in the home
  • After seeing to the safety of the child or children, notify the subjects of the report and other persons named in the report in writing of the existence of the report and their respective rights

When the social services district determines that a case is appropriate to be included in the family assessment and services track, the district’s activities shall include, at a minimum, the following:

  • The provision of written notice to each parent or caregiver explaining that it is the intent of the social services district to meet the needs of the family without engaging in a traditional child protective services investigation
  • An examination, with the family, of the family’s strengths, concerns, and needs
  • Where appropriate, an offer of assistance that shall include case management that is supportive of family stabilization
  • The planning and provision of services responsive to the service needs of the family
  • An ongoing joint evaluation and assessment of the family’s progress including periodic assessments of risk to the child
Timeframes for Completing Investigations

Each child protective service shall:

  • No later than 7 days after receipt of the initial report, send a preliminary written report of the initial investigation, including evaluation and actions taken or contemplated, to the central register
  • Determine, within 60 days, whether the report is ‘indicated’ or ‘unfounded’

For reports assigned to the family assessment and services track, the social services district shall be responsible for ensuring that the children are safe in their homes. A safety assessment shall be commenced within 24 hours of receipt of the report and completed within 7 days.

Classification of Reports

Reports of investigations shall be classified as follows:

  • A report shall be ‘unfounded’ unless an investigation determines that some credible evidence of the alleged abuse or maltreatment exists.
  • A report shall be ‘indicated’ if an investigation determines that some credible evidence of the alleged abuse or maltreatment exists.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

The following persons and officials are required to report:

  • Physicians, physician assistants, surgeons, medical examiners, coroners, dentists, dental hygienists, osteopaths, optometrists, chiropractors, podiatrists, residents, interns, psychologists, registered nurses, social workers, or emergency medical technicians
  • Licensed creative arts therapists, marriage and family therapists, mental health counselors, or psychoanalysts
  • Hospital personnel or Christian Science practitioners
  • School officials, including but not limited to, teachers, guidance counselors, school psychologists, school social workers, school nurses, or administrators
  • Full- or part-time compensated school employees required to hold temporary coaching licenses or professional coaching certificates
  • Social services workers, daycare center workers, providers of family or group family daycare, or any other child care or foster care worker
  • Directors of children’s overnight camps, summer day camps, or traveling summer day camps
  • Employees or volunteers in residential care facilities for children that are licensed, certified, or operated by the Office of Children and Family Services
  • Mental health professionals, substance abuse counselors, alcoholism counselors, or all persons credentialed by the Office of Alcoholism and Substance Abuse Services
  • Peace officers, police officers, district attorneys or assistant district attorneys, investigators employed in the office of a district attorney, or other law enforcement officials
Reporting by Other Persons

Any other person who has reasonable cause to suspect that a child is abused or maltreated may report.

Institutional Responsibility to Report

Whenever a person is required to report in his or her capacity as a member of the staff of a medical or other public or private institution, school, facility, or agency, he or she shall make the report as required and immediately notify the person in charge of such institution, school, facility, or agency, or his or her designated agent. The person in charge, or the designated agent of such person, shall be responsible for all subsequent administration necessitated by the report. Any report shall include the name, title, and contact information for every staff person of the institution who is believed to have direct knowledge of the allegations in the report. Nothing in this section or title is intended to require more than one report from any such institution, school, or agency.

A medical or other public or private institution, school, facility, or agency shall not take any retaliatory personnel action against an employee because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee therefore makes a report in accordance with this title. No school, school official, child care provider, foster care provider, residential care facility provider, hospital, medical institution provider, or mental health facility provider shall impose any conditions, including prior approval or prior notification, upon a member of their staff specifically required to report under this title.

Standards for Making a Report

A report is required when the reporter has reasonable cause to suspect:

  • A child coming before him or her in his or her professional or official capacity is an abused or maltreated child.
  • The parent, guardian, custodian, or other person legally responsible for the child comes before the reporter and states from personal knowledge facts, conditions, or circumstances that, if correct, would render the child an abused or maltreated child.
Privileged Communications

Notwithstanding the privileges set forth in article 45 of the civil practice law and rules, and any other provision of law to the contrary, mandated reporters who make a report that initiates an investigation of an allegation of child abuse or maltreatment are required to comply with all requests for records made by a child protective service relating to the report.

Inclusion of Reporter’s Name in Report

The report shall include the name and contact information for the reporter.

Disclosure of Reporter Identity

Any disclosure of information shall not identify the source of the report.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

Any person, institution, school, facility, agency, organization, partnership, or corporation that employs persons who are mandated to report suspected incidents of child abuse or maltreatment and whose employees, in the normal course of their employment travel to locations where children reside, shall provide, consistent with § 421 of this title, all current and new employees with information on recognizing the signs of an unlawful methamphetamine laboratory. Pursuant to § 19.27 of the mental hygiene law, the Office of Alcoholism and Substance Abuse Services shall make available to such employers information on recognizing the signs of unlawful methamphetamine laboratories.

‘Neglected child’ means a child younger than age 18 whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent or other person legally responsible for his or her care to exercise a minimum degree of care by misusing a drug or drugs, or by misusing alcoholic beverages to the extent that he or she loses self-control of his or her actions, or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he or she loses self-control of his or her actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court shall appoint an attorney to represent a child who has been allegedly abused or neglected upon the earliest occurrence of any of the following:

  • The court receiving notice of the emergency removal of the child
  • An application for an order for removal of the child prior to the filing of a petition
  • The filing of a petition alleging abuse or neglect
The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The term ‘attorney for the child’ refers to an attorney admitted to practice law in the State of New York who has been designated to represent a minor.

Specific Duties

Whenever an attorney has been appointed by the family court to represent a child, the appointment shall continue without further court order or appointment during an order of disposition issued by the court directing supervision, protection, or suspending judgment, or any extension thereof; an adjournment in contemplation of dismissal; or the pendency of the foster care placement. All notices and reports required by law shall be provided to the attorney for the child. Such appointment shall terminate upon the expiration of the order, unless another appointment of an attorney has been made by the court or unless the attorney makes application to the court to be relieved of his or her appointment. Upon approval of an application to be relieved, the court shall immediately appoint another attorney for the child to whom all notices and reports required by law shall be provided.

In addition to all other duties and responsibilities necessary to the representation of a child, an attorney for the child shall upon receipt of a report from a child protective agency, review the information contained therein and make a determination as to whether there is reasonable cause to suspect that the child is at risk of further abuse or neglect or that there has been a substantive violation of a court order. When the attorney makes such a determination, he or she shall apply to the court for appropriate relief. Nothing contained in this section shall relieve a child protective agency or social services official of its duties pursuant to this act or the social services law.

In court rules: In proceedings in which the child is the subject, the attorney must zealously advocate for the child’s position. The attorney must ascertain the child’s position by consulting with the child in a manner consistent with the child’s capacities, and by gaining a thorough knowledge of the child’s circumstances. If the child is capable of knowing, voluntary, and considered judgment, the attorney for the child should be directed by the wishes of the child, even if this conflicts with the attorney’s belief that what the child wants is not in the child’s best interests. The attorney should fully explain the options available to the child, and may recommend a course of action that in the attorney’s view would best promote the child’s interests.

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary, and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.

How the Representative Is Compensated

An attorney for the child shall be entitled to compensation pursuant to applicable provisions of law for services rendered up to and including disposition of the petition. The attorney shall, by separate application, be entitled to compensation for services rendered subsequent to the disposition of the petition.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Upon completion of any assessment of a family’s needs and circumstances, and no later than 30 days after a child is removed from his or her home or is placed in foster care, the local social services district shall establish or update and maintain a family service plan based on an assessment of the family’s needs and circumstances.

Who May Participate in the Case Planning Process

The family service plan shall be prepared in consultation with the child’s parent or guardian, unless such person is unavailable or unwilling to participate or such participation would be harmful to the child; with the child if the child is age 10 or older; and, when appropriate, with the child’s siblings. Such consultation shall be done in person, unless such a meeting is impracticable or would be harmful to the child. If it is impracticable to hold such consultation in person, such consultation may be done through the use of technology, including but not limited to, videoconferencing and teleconference technology. If the parent is incarcerated or residing in a residential drug treatment facility, the plan shall reflect the special circumstances and needs of the child and the family.

In regulation: Each family assessment and service plan must document the involvement of or the efforts to involve the parent or guardian in the development of the plan, as well as the involvement of or efforts to involve children age 10 or older, when appropriate, including children in foster care and their siblings or half-siblings and children placed by a court in the direct custody of a relative or other suitable person. Such efforts must include, but are not limited to:

  • Encouraging the parents or guardian and the children to participate in the development and review of the plan and attempting to obtain the parents’ or guardian’s signatures documenting their review of the plan
  • When the parents or guardian and/or children are not able to participate and arrangements cannot be made to allow participation, conveying the contents of the service plan and any recommendations to them, and attempting to obtain the parents’ or guardian’s comments and signatures documenting their review of the plan
Contents of a Case Plan

The plan shall include at least the following:

  • Timeframes for periodic reassessment of the care and maintenance needs of each child and the manner in which such reassessments are to be accomplished
  • Short-term, intermediate, and long-term goals for the child and family and actions planned to meet the needs of the child and family and each goal
  • Identification of necessary and appropriate services and assistance to the child and members of the child’s family
  • Any alternative plans for services where specific services are not available, and any viable options for services considered during the planning process
  • Where placement in foster care is determined necessary, specification of the reasons for such determination, the kind and level of placement, any available placement alternatives, an estimate of the anticipated duration of placement, and plan for termination of services under appropriate circumstances

In regulation: Each family service plan must include, but is not limited to, the following:

  • A program choice or choices for each child receiving services
  • A goal and plan for child permanency
  • A description of legal activities and their impact on the case
  • A thorough and comprehensive assessment or reassessment and analysis of the family members’ strengths, needs, and problems
  • Immediate actions or controlling interventions that must be taken or have been provided
  • The family’s view of its needs and concerns
  • A plan of services and assistance made in consultation with the family and each child over age 10, whenever possible, that utilizes the family’s strengths and addresses the family members’ needs and concern
  • The status of the service plan including service availability and a description of the manner of service provision
  • The family’s progress toward plan achievement
  • Essential data relating to the identification and history of the child and family members and a summary that documents the involvement of the parent(s) or guardian, child(ren) and any others in the development of the service plan
  • Safety assessments in all cases
  • Risk assessments in child protective services cases
  • Assessments of family functioning

For children placed in foster care, the plan also must include:

  • A description of the reasonable efforts made to prevent or eliminate the need for placement or the justification for the determination that reasonable efforts were not necessary
  • Identification of all available placement alternatives and the specific reasons why they were rejected
  • Efforts made to locate any absent parents
  • Documentation that continuity in the child’s environment has been maintained or the reasons why this is not practicable or in the best interests of the child
  • Information about whether the child will be placed with the child’s siblings and, if not, the reasons why and the arrangements made for contact with the siblings
  • An estimate of the anticipated duration of the placement and the circumstances and conditions that must be met to safely discharge the child from placement
  • A visiting plan for the child with his or her parent(s), guardian, siblings, and other significant family members
  • A description of the reasons identified for not filing a petition to terminate parental rights for any child in foster care for at least 15 of the most recent 22 months
  • Where concurrent planning is determined through assessment to be warranted in the case, a description of the alternate plan to achieve permanency for the child if the child cannot be safely returned home

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

A case consultation must be held for each child in preparation for each permanency hearing, including in those cases where the permanency hearing will constitute the service plan review. The purpose of such case consultation is to assist with the development of the permanency hearing report. The issues addressed in the report shall include the following:

  • A review of the reasonable efforts made to assist with the achievement of the child’s permanency planning goal
  • An assessment of the need for modification or continuation of the current permanency planning goal
  • For a child who is not free for adoption, a review of the status of the concurrent permanency plan for the child, in the event the child is unlikely to be able to return home safely

When the family assessment determines that concurrent planning is warranted, the family assessment and service plan must include a description of the alternate plan to achieve permanency for the child if the child cannot be returned home safely.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

For a child in foster care:

  • The initial permanency hearing shall be commenced no later than 6 months from the date that is 60 days after the child was removed from his or her home.
  • Subsequent permanency hearings for a child who remains in foster care shall be commenced no later than 6 months from the completion of the previous permanency hearing.

After a child has been freed for adoption, permanency hearings shall be held:

  • No later than 30 days after the hearing at which the child was freed
  • No later than 6 months from the completion of the previous permanency hearing

For a former foster youth who has returned to foster care, a permanency hearing shall be held no later than 30 days after the youth has returned to foster care.

Persons Entitled to Attend Hearings

Notice of permanency hearings shall be provided to:

  • The child’s parent, including any nonrespondent parent, unless the parent’s rights have been terminated
  • The foster parent in whose home the child currently resides
  • Any other person legally responsible for the child’s care
  • The agency supervising the care of the child
  • The child’s attorney and the attorney for the respondent parent
  • The child if he or she is age 10 or older
  • Any preadoptive parent or relative providing care for the child
  • A former foster parent, if any, in whose home the child previously had resided for a continuous period of 12 months in foster care

The child’s parent, person legally responsible for the child’s care, and the current foster parent shall be parties to the proceeding. A preadoptive parent, relative, or former foster parent, on the basis of such notice, shall have an opportunity to be heard but shall not be a party to the permanency hearing.

The child has a right to be present at the hearing, except upon a waiver of that right after consultation with the attorney for the child. Upon an application by the child’s attorney, the court shall grant an adjournment whenever necessary to protect the child’s right to meaningfully participate in the hearing.

Determinations Made at Hearings

The court shall review the permanency hearing report that shall include, but need not be limited to, up-to-date and accurate information regarding:

  • The child’s current permanency goal
  • The health, well-being, and status of the child since the last hearing
  • The child’s current placement
  • The educational and other progress the child has made since the last hearing
  • The visitation plan for the child
  • For a child who is age 16 who elects not to participate in an educational program leading to a high school diploma, the steps that the local social services district has taken to assist the child to become gainfully employed or enrolled in a vocational program
  • For a child who is age 14 or older, the services and assistance that are being provided to enable the child to learn independent living skills
  • Any other services being provided to the child
  • The status of the parent, including:
    • The services that have been offered to the parent to enable the child to return home safely
    • The steps the parent has taken to use the services
    • Any barriers encountered to the delivery of such services
    • The progress the parent has made toward reunification, if applicable
    • Any other steps the parent has taken to comply with and achieve the permanency plan
  • The reasonable efforts to achieve the child’s permanency plan that have been taken by the local social services district or agency since the last hearing
  • The recommended permanency plan
Permanency Options

The child’s current permanency goal may be:

  • Return to the parent or parents
  • Placement for adoption with the local social services official filing a petition for termination of parental rights
  • Referral for legal guardianship
  • Permanent placement with a fit and willing relative
  • If the child is age 16 or older, placement in another planned permanent living arrangement, with documentation of:
    • A significant connection to an adult who is willing to be a permanency resource for the child
    • Intensive, ongoing, and unsuccessful efforts to return the child home or secure a permanent placement for the child, including efforts through search technology, including social media, to find the child’s biological family members
    • The steps being taken to ensure that the child’s foster family home is following the reasonable and prudent parent standard, and the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities
    • The compelling reasons for determining that it continues to not be in the best interests of the child to be returned home or placed in another permanent home

 

Determining the Best Interests of the Child

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Current Through March 2016

For the purpose of this section, in determining reasonable efforts to be made with respect to a child, and in making such reasonable efforts, the child’s health and safety shall be the paramount concerns.

The legislature recognizes that the health and safety of children are of paramount importance. To the extent it is consistent with the health and safety of the child, the legislature further finds that:

  • It is desirable for children to grow up with a normal family life in a permanent home and that such circumstance offers the best opportunity for children to develop and thrive.
  • It is generally desirable for the child to remain with or be returned to the birth parent, because the child’s need for a normal family life will usually best be met in the home of his or her birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered.
  • The State’s first obligation is to help the family with services to prevent its breakup or to reunite it if the child has already left home.
  • When it is clear that the birth parent cannot or will not provide a normal family home for the child, and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought for the child.

The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. Provision of a timely procedure for the termination of the rights of the birth parents, in appropriate cases, could reduce such unnecessary stays.

It is the intent of the legislature to provide procedures not only assuring that the rights of the birth parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption.

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

An order terminating parental rights shall be granted only upon a finding that one or more of the grounds specified below are based upon clear and convincing proof:

  • The parent has abandoned the child for 6 months immediately prior to the date on which the petition is filed in the court.
  • The parent is presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for the child.
  • The child is a permanently neglected child.
  • The parent severely or repeatedly abused such child.

When a court determines that reasonable efforts to reunite the child with his or her parent are not required, a petition to terminate parental rights may be filed immediately. Reasonable efforts shall not be required when:

  • The parent has subjected the child to aggravated circumstances, as defined below.
  • The parent of such child has been convicted of:
    • Murder or voluntary manslaughter and the victim was another child of the parent
    • The attempt to commit any of the above crimes
    • Assault or aggravated assault upon a person less than age 11 that resulted in serious physical injury to the child or another child of the parent
  • The parent has failed for 6 months to keep the agency apprised of his or her location.
  • An incarcerated parent has failed on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or to plan and arrange visits with the child.
  • The parental rights of the parent to a sibling of the child have been involuntarily terminated.

‘Aggravated circumstances’ means:

  • A child has been either severely or repeatedly abused.
  • A child has subsequently been found to be an abused child within 5 years after returning home following placement in foster care as a result of being found to be a neglected child.
  • The parent of a child in foster care has refused and has failed completely, over a period of at least 6 months from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect.
Circumstances That Are Exceptions to Termination of Parental Rights

When the child has been in foster care for 15 of the most recent 22 months, has been determined to be an abandoned child, or the parent has been convicted of one of the crimes listed above, a petition to terminate the parent’s rights shall be filed unless:

  • The child is being cared for by a relative or relatives.
  • The agency has documented in the most recent case plan a compelling reason for determining that the filing of a petition would not be in the best interests of the child.
  • The agency has not provided to the parent or parents of the child such services as it deems necessary for the safe return of the child to the parent or parents unless such services are not legally required.
  • The parent or parents are incarcerated or participating in a residential substance abuse treatment program, or the prior incarceration or participation of a parent or parents in a residential substance abuse treatment program is a significant factor in why the child has been in foster care for 15 of the last 22 months, provided that the parent maintains a meaningful role in the child’s life, and the agency has not documented a reason why it would otherwise be appropriate to file a petition pursuant to this section.

For the purposes of this section, a compelling reason why a petition for termination of parental rights is not required may include, but is not limited to:

  • The child was placed into foster care, and a review of the specific facts and circumstances of the child’s placement demonstrates that the appropriate permanency goal for the child is either a return to his or her parent or guardian or discharge to independent living.
  • The child has a permanency goal other than adoption.
  • The child is age 14 or older and will not consent to his or her adoption.
  • There are insufficient grounds for filing a petition to terminate parental rights.
  • The child is the subject of a pending disposition.
Circumstances Allowing Reinstatement of Parental Rights

A petition to restore parental rights may be filed when the following conditions are met:

  • The order terminating parental rights was issued 2 or more years prior to the date of filing of the petition.
  • The termination was based upon grounds enumerated § 384-b(4)(b), (c) or (d) of the social services law.
  • The petitioners consent to the relief requested in the petition or that they withheld consent without good cause.
  • The child is age 14 or older, remains under the jurisdiction of the family court, has not been adopted, does not have a permanency goal of adoption, and consents to the relief requested in the petition.

The petitioner shall have the burden of proof by clear and convincing evidence that restoration of parental rights is in the child’s best interests. The court may make the following orders of disposition:

  • The court may grant the petition and transfer guardianship and custody of the child to the birth parent or parents.
  • The court may dismiss the petition, in which case custody of the child with the authorized agency or individual would continue and a permanency hearing would be required to be held as scheduled.
  • The court may grant the petition conditionally for a designated period of up to 6 months, during which time guardianship and custody of the child shall remain with the local social services district or authorized agency while the child may visit with, or be placed on a trial discharge with, the birth parent or parents. The court shall direct the district or agency to supervise the child’s birth parent or parents, develop a reunification plan, and provide appropriate transitional services to the child and birth parent or parents.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘prospective relative guardian’ means a person who is related to the child through blood, marriage, or adoption and who has been caring for the child as a fully certified or approved foster parent for at least 6 consecutive months prior to applying for kinship guardianship assistance payments.

The term ‘relative guardian’ means a person who was appointed as a guardian or permanent guardian for a child after entering into an agreement with a social services official for the receipt of payments and services in accordance with this title.

Purpose of Guardianship

In determining whether the best interests of the child will be promoted by the granting of guardianship of the child to a relative who has cared for the child as a foster parent, the court shall give due consideration to the permanency goal of the child, the relationship between the child and the relative, whether the relative and the local Department of Social Services have entered into an agreement to provide kinship guardianship assistance payments for the child to the relative, and, if so, whether a fact-finding hearing pursuant to § 1051 of this chapter has occurred, and whether compelling reasons exist for determining that the return home of the child and the adoption of the child are not in the best interests of the child and are, therefore, not appropriate permanency options.

A Guardian’s Rights and Responsibilities

The permanent guardian of a child shall have the right and responsibility to make decisions, including issuing any necessary consents regarding the child’s protection, education, care, and control, health and medical needs, and the physical custody of the person of the child, and may consent to the adoption of the child.

Qualifying the Guardian

A prospective relative guardian and any person age 18 or older living in the home of the prospective relative guardian who has not already been subject to a national and State criminal history record check as part of the process of the prospective relative guardian becoming a certified or approved foster parent must complete such a record check upon application for guardianship.

The social services official must inquire of the Office of Children and Family Services whether each prospective relative guardian and each person age 18 or older living in the home of the prospective relative guardian has been or is currently the subject of an indicated report of child abuse or maltreatment on file with the statewide central register of child abuse and maltreatment. If the prospective relative guardian or any other person older than age 18 residing in the home of the prospective relative guardian resided in another State in the 5 years preceding the application, a request must be made for child abuse and maltreatment information maintained by the child abuse and maltreatment registry from the applicable child welfare agency in each State of previous residence if such a request has not been made as part of the process of the prospective relative guardian becoming a certified or approved foster parent.

Procedures for Establishing Guardianship

When the permanency goal for a foster child is referral for legal guardianship, a petition shall be filed with the court by a fit and willing relative or other suitable person. The court presiding over the proceeding may consolidate the hearing of the guardianship petition with the dispositional hearing or permanency hearing, as applicable.

The court may issue an order of guardianship in response to a petition filed by a relative or suitable person seeking guardianship of the child if:

  • The court finds that granting guardianship of the child to the relative or suitable person is in the best interests of the child and that the termination of the order placing the child in out-of-home care will not jeopardize the safety of the child.
  • The court finds that granting guardianship of the child to the relative or suitable person will provide the child with a safe and permanent home.
  • The parents, the attorney for the child, the local department, and the person of the child who has been the foster parent for the child for 1 year or more consent to the guardianship.

The court shall hold age-appropriate consultation with the child. If the youth has reached age 14, the court shall ascertain his or her preference for a suitable guardian. Notwithstanding any other section of law, when the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian.

Contents of a Guardianship Order

An order made in accordance with the provisions of this section shall set forth the required findings as described above. Notwithstanding any other provision of law, the court shall not issue an order of supervision nor may the court require the local department to provide services to the petitioner when granting guardianship.

Any order entered pursuant to this section shall conclude the court’s jurisdiction over the proceeding, and the court shall not maintain jurisdiction over the proceeding for further permanency hearings.

Modification/Revocation of Guardianship

As part of the order granting custody or guardianship to the relative or suitable person, the court may require that the local department of social services and the attorney for the child receive notice of, and be made parties to, any subsequent proceeding to modify the order of custody or guardianship. If, however, the guardian and the local department have entered into an agreement to provide kinship guardianship assistance payments for the child, the order must require that the local department and the attorney for the child receive notice of, and be made parties to, any such subsequent proceeding involving custody or guardianship of the child.

Eligibility for Guardianship Subsidy

Note: This provision shall not take effect until an amendment to the New York Title IV-E State Plan to establish a guardianship assistance program is approved by the U.S. Department of Health and Human Services.

A child is eligible for kinship guardianship assistance payments if the social services official determines the following:

  • The child has been in foster care in the home of the prospective relative guardian for at least 6 consecutive months.
  • Return home or adoption are not appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the prospective relative guardian, and the prospective relative guardian has a strong commitment to caring permanently for the child.
  • Age-appropriate consultation has been held with the child:
    • With respect to a child who is age 14 or older, the child has been consulted regarding the kinship guardianship arrangement.
    • With respect to a child who is age 18 or older, the child has consented to the kinship guardianship arrangement.

The financial status of the prospective relative guardian shall not be considered in determining eligibility for kinship guardianship assistance payments.

A prospective relative guardian who has been caring for an eligible foster child for at least 6 consecutive months and who intends to seek guardianship of the child may apply to the social services official who has custody of the child to receive kinship guardianship assistance payments, nonrecurring guardianship payments, and other applicable services and payments on behalf of the child. Applications shall only be accepted prior to issuance of letters of guardianship of the child to the relative guardian.

Links to Agency Policies

New York State Office of Children and Family Services: Know Your Options: Relatives Caring for Childrenexternal link (PDF – 312 KB)

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

When the court determines that a child must be removed from his or her home, the court shall direct the local commissioner of social services to conduct an immediate investigation to locate any nonrespondent parent of the child and any relatives of the child, including all of the child’s grandparents, all suitable relatives identified by any respondent parent or any nonrespondent parent, and any relative identified by a child over age 5 as a relative who plays or has played a significant and positive role in his or her life. The commissioner shall inform the relatives of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child.

At the conclusion of the dispositional hearing, the court may grant custody or guardianship of the child to a relative or other suitable person if:

  • The relative or suitable person has filed a petition for custody or guardianship of the child.
  • The court finds that granting custody or guardianship of the child to the relative or suitable person is in the best interests of the child and that the safety of the child will not be jeopardized if the respondent or respondents under the child protective proceeding are no longer under supervision or receiving services.
  • The court finds that granting custody or guardianship of the child to the relative or suitable person will provide the child with a safe and permanent home.
Requirements for Placement with Relatives

Upon application of a relative to become a foster parent of a child, the court shall hold a hearing to determine whether the child should be placed with the relative. The hearing shall be held only if:

  • The relative is related within the third degree of consanguinity to either parent.
  • The child has been temporarily removed from his or her home and placed in nonrelative foster care.
  • The relative indicates a willingness to become the foster parent of the child and has not refused previously to be considered as a foster parent or custodian of the child; however, an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational, or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal.
  • The local social services district has refused to place the child with the relative for reasons other than the relative’s failure to qualify as a foster parent pursuant to the regulations of the Office of Children and Family Services.
  • The application is brought within 6 months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than 12 months from the date that the child was removed.

The court shall give due consideration to such application and make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.

After the hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services to commence an investigation of the home of the relative within 24 hours and thereafter expedite approval or certification of the relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of the relative as a foster parent.

Requirements for Placement of Siblings

When a social services official removes a child from his or her home, such official shall place the child with his or her minor siblings or half-siblings who have been or are being remanded to or placed in the care and custody of the official unless, in the judgment of the official, such placement is contrary to the best interests of the children. Placement with siblings or half-siblings shall be presumptively in the child’s best interests, unless such placement would be contrary to the child’s health, safety, or welfare. If such placement is not immediately available at the time of the removal of the child, such official shall provide or arrange for the provision of such placement within 30 days.

Relatives Who May Adopt


Upon acceptance of a judicial surrender or approval of an extrajudicial surrender, the court shall inquire whether any foster parent or parents with whom the child resides, any relative of the child, or other person seeks to adopt the child.

Any adult husband and his adult wife and any adult unmarried person who, as foster parent or parents, have cared for a child continuously for a period of 12 months or more may apply to an authorized agency for the placement of the child with them for the purpose of adoption. If the child is eligible for adoption, the agency shall give preference and first consideration to their application over all other applications for adoption placements.

Requirements for Adoption by Relatives

Final determination of the propriety of an adoption of a foster child by a foster parent or relative shall be within the sole discretion of the court.

If a foster parent, relative, or other person seeks to adopt the child, such person may submit, and the court shall accept, all petitions for the adoption of the child, together with an adoption home study, if any, completed by an authorized agency or disinterested person. The court shall thereafter establish a schedule for completion of other inquiries and investigations necessary to complete review of the adoption of the child and shall immediately set a schedule for completion of the adoption.

 

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘diligent efforts’ means reasonable attempts by an agency to assist, develop, and encourage a meaningful relationship between the parent and child, which include but are not limited to:

  • Consulting and cooperating with the parents to develop a plan for appropriate services
  • Making suitable arrangements for the parent to visit with the child
  • Providing services and other assistance so that problems preventing the child’s discharge from care can be resolved
  • Informing the parents of the child’s progress, development, and health
  • Making suitable arrangements with a correctional facility for an incarcerated parent to visit with the child, if such visiting is in the best interests of the child
When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • Prior to placement to prevent or eliminate the need for removal of the child from the home
  • To make it possible for the child to return home
  • If the permanent plan for the child is other than reunification, to make and finalize the alternative permanent placement
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required when the court determines that:

  • The parent has subjected the child to aggravated circumstances, where the child has been either severely or repeatedly abused.
  • The parent has been convicted of murder or manslaughter, and the victim was another child of the parent. However, the parent must have acted voluntarily in committing such crime.
  • The parent has been convicted of an attempt to commit any of the above crimes, and the victim or intended victim was the child or another child of the parent; or has been convicted of conspiring, soliciting, or facilitating any of the above crimes, and the victim or intended victim was the child or another child of the parent.
  • The parent has been convicted of assault or aggravated assault upon a person younger than age 11, and the crime resulted in serious physical injury to the child or another child of the parent.
  • The parental rights of the parent to a sibling of the child have been involuntarily terminated.

Evidence of diligent efforts by an agency to encourage and strengthen the parental relationship shall not be required when:

  • The parent has failed for a period of 6 months to keep the agency apprised of his or her location.
  • An incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to help the parent plan for the future of the child or in the agency’s efforts to plan and arrange visits with the child.

 

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

A parent, legal guardian, or legal custodian may petition for the appointment of a standby guardian. The child’s primary caretaker may petition when the parent, guardian, or custodian cannot be located.

How to Establish a Standby Guardian

The petition must state:

  • Whether the authority of the standby guardian is to become effective upon the petitioner’s incapacity, death, or consent, whichever occurs first
  • That the petitioner suffers from either a progressively chronic illness or an irreversibly fatal illness, and the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness and that the interests of the child will be promoted by the appointment of a standby guardian, it must make a decree accordingly.

A standby guardian may also be designated by a written designation, signed by the parent in the presence of two witnesses. An optional designation form is provided in the statute.

The court will consider the preference of a child who is age 14 or older. If the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian.

How Standby Authority is Activated

The standby guardian’s authority commences upon receipt of a determination of the parent’s incapacity, certificate of the parent’s death, or the parent’s written consent. An attending physician must document the parent’s incapacity.

A guardian by judicial decree has 90 days to file confirming documents. A guardian by written designation has 60 days to file confirming documents and petition for appointment.

Involvement of the Noncustodial Parent

Citation: Surrogate’s Crt. Proc. Act § 1705
Notice of hearing is required to any parent living in a known residence in New York, unless the parent has abandoned the child, is deprived of civil rights, divorced from the custodial parent, incompetent, or otherwise judicially deprived of custody of the child.

Authority Relationship of the Parent and the Standby

The commencement of the standby guardian’s authority due to incapacity, debilitation, or consent shall not divest the parent of any parental rights, but shall confer upon the standby guardian concurrent authority with respect to the child.

Withdrawing Guardianship

The petitioner may revoke a standby guardianship created by judicial appointment by executing a written revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the revocation.

A judicially appointed standby guardian may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation.

The parent may revoke a standby guardianship created by written designation:

  • By executing a subsequent designation of guardianship by petition to the court
  • In the case of a standby guardian whose authority becomes effective upon the death of the parent, by a subsequent designation of standby guardian set forth in a will of the parent
  • By notifying the standby guardian verbally or in writing or by any other act evidencing a specific intent to revoke the standby guardianship prior to the filing of a petition

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

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4th Circuit

5th Circuit

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9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

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8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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