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

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

North Carolina

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: The term ‘in the presence of a minor’ means that the minor was in a position to see or hear the assault.

A minor is any person younger than age 18 who is residing with or is under the care and supervision of, and who has a personal relationship with, the person assaulted or the person committing the assault.

Consequences

Any person who, in the course of an assault, assault and battery, or affray, inflicts serious injury upon another person or uses a deadly weapon on a person with whom the person has a personal relationship, and does so in the presence of a minor, is guilty of a Class A1 misdemeanor. Upon conviction, the person shall be:

  • Placed on supervised probation in addition to any other punishment imposed by the court
  • Sentenced to an active punishment of no less than 30 days in addition to any other punishment imposed by the court for a second or subsequent violation

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused juvenile’ means any child younger than age 18 whose parent, guardian, custodian, or caregiver:

  • Inflicts or allows to be inflicted upon the child a serious physical injury by other than accidental means
  • Creates or allows to be created a substantial risk of serious physical injury to the child by other than accidental means
  • Uses or allows to be used upon the child cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior
  • Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile
  • Commits or allows to be committed the offense of human trafficking, involuntary servitude, or sexual servitude against the child
Neglect

‘Neglected juvenile’ means a child:

  • Who does not receive proper care, supervision, or discipline from his or her parent, guardian, custodian, or caregiver
  • Who is not provided necessary medical or remedial care
  • Who lives in an environment injurious to his or her welfare
  • Who has been placed for care or adoption in violation of law

In determining whether a child is a neglected juvenile, it is relevant whether that child lives in a home where another child has died as a result of suspected abuse or neglect or has been subjected to abuse or neglect by an adult who regularly lives in the home.

‘Serious neglect’ means conduct, behavior, or inaction of the juvenile’s parent, guardian, custodian, or caregiver that evidences a disregard of consequences of such magnitude that the conduct, behavior, or inaction constitutes an unequivocal danger to the juvenile’s health, welfare, or safety, but does not constitute abuse.

Sexual Abuse/Exploitation

The term ‘abused juvenile’ includes any child younger than age 18 whose parent, guardian, custodian, or caregiver commits, permits, or encourages the commission of a violation of the following laws regarding sexual offenses by, with, or upon the child:

  • Forcible rape, statutory rape of a child by an adult, or first-degree statutory rape
  • A forcible sex offense, statutory sexual offense with a child by an adult, or first-degree statutory sexual offense
  • Sexual activity by a substitute parent or custodian
  • Sexual activity with a student
  • Unlawful sale, surrender, or purchase of a minor
  • A crime against nature or incest
  • Preparation of obscene photographs, slides, or motion pictures of the juvenile
  • Employing or permitting the juvenile to assist in a violation of the obscenity laws
  • Dissemination of obscene material to the juvenile
  • Displaying or disseminating material harmful to the juvenile
  • First- and second-degree sexual exploitation of the juvenile
  • Promoting the prostitution of the juvenile
  • Taking indecent liberties with the juvenile
Emotional Abuse

The term ‘abused juvenile’ includes any child younger than age 18 whose parent, guardian, custodian, or caregiver creates or allows to be created serious emotional damage to the child. Serious emotional damage is evidenced by a child’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others.

Abandonment

Citation: Gen. Stat. § 7B-101
The term ‘neglected juvenile’ includes a child who has been abandoned.

Standards for Reporting

Citation: Gen. Stat. § 7B-301
A report is required when any person has cause to suspect that any juvenile is abused, neglected, or dependent or has died as the result of maltreatment.

Persons Responsible for the Child

‘Responsible individual’ means a parent, guardian, custodian, or caretaker who abuses or seriously neglects a juvenile.

The term ‘caretaker’ means any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting, including:

  • A stepparent, foster parent, or an adult member of the juvenile’s household
  • An adult relative entrusted with the juvenile’s care
  • Any person such as a house parent or cottage parent who has primary responsibility for supervising a juvenile’s health and welfare in a residential child care facility or residential educational facility
  • Any employee or volunteer of a division, institution, or school operated by the Department of Health and Human Services
Exceptions

No exceptions are specified in statute.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

  • Attempting to cause bodily injury or intentionally causing bodily injury
  • Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in § 14-277.3A, that rises to such a level as to inflict substantial emotional distress
  • Committing a sex offense, as defined in §§ 14-27.2 through 14-27.7
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 ‘personal relationship’ means a relationship in which the parties involved:

  • Are current or former spouses
  • Are persons of the opposite sex who live together or have lived together
  • Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren
  • Have a child in common
  • Are current or former household members
  • Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship

For purposes of this subdivision, a dating relationship is one in which the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.

For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under age 16.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

The data [in the central registry] shall be furnished by county directors of social services to the Department of Health and Human Services and shall be confidential, subject to policies adopted by the Social Services Commission providing for its use for study and research and for other appropriate disclosure.

Persons or Entities Allowed Access to Records

The clerk shall maintain a complete record of all juvenile cases filed in the clerk’s office alleging abuse, neglect, or dependency. The records shall be withheld from public inspection and, except as provided below, may be examined only by order of the court. The record shall include the summons, petition, custody order, court order, written motions, the electronic or mechanical recording of the hearing, and other papers filed in the proceeding.

The following persons may examine the juvenile’s record and obtain copies of written parts of the record without an order of the court:

  • The person named in the petition as the juvenile
  • The guardian ad litem
  • The county Department of Social Services
  • The juvenile’s parent, guardian, or custodian, or the attorney for the juvenile or his or her parent, guardian, or custodian

The director of the Department of Social Services shall maintain a record of the cases of children under protective custody by the department or under placement by the court, including family background information; reports of social, medical, psychiatric, or psychological information concerning a child or the child’s family; interviews with the child’s family; or other information that the court finds should be protected from public inspection in the best interests of the child. These records may be released to the following:

  • The child’s guardian ad litem or the child, including a juvenile who has reached age 18 or been emancipated
  • A district or superior court judge presiding over a civil matter in which the department is not a party
  • A district or superior court judge presiding over a criminal or delinquency matter, who shall conduct an in camera review before releasing to the defendant or child any confidential records maintained by the department
  • A parent, guardian, custodian, or caregiver in accordance with § 7B-700

In the case of a child victim, the court may order the sharing of information among such public agencies as the court deems necessary to reduce the trauma to the victim.

When Public Disclosure of Records is Allowed

Notwithstanding any other provision of law, a public agency shall disclose to the public, upon request, the findings and information related to a child fatality or near fatality if:

  • A person is criminally charged with having caused the child fatality or near fatality.
  • The district attorney has certified that a person would be charged with having caused the child fatality or near fatality but for that person’s prior death.

Nothing herein shall be deemed to authorize access to the confidential records in the custody of a public agency, or the disclosure to the public of the substance or content of any psychiatric, psychological, or therapeutic evaluations or like materials or information pertaining to the child or the child’s family unless directly related to the cause of the child fatality or near fatality, or the disclosure of information that would reveal the identities of persons who provided information related to the suspected abuse, neglect, or maltreatment of the child.

Within 5 working days from the receipt of a request for findings and information related to a child fatality or near fatality, a public agency shall consult with the appropriate district attorney and provide the findings and information unless the agency has a reasonable belief that release of the information:

  • Is not authorized by State law
  • Is likely to cause mental or physical harm or danger to a minor child residing in the deceased or injured child’s household
  • Is likely to jeopardize the State’s ability to prosecute the defendant
  • Is likely to jeopardize the defendant’s right to a fair trial
  • Is likely to undermine an ongoing or future criminal investigation
  • Is not authorized by Federal law and regulations
Use of Records for Employment Screening

The department may provide information from its list [of individuals responsible for child abuse or neglect] to child-caring institutions, child-placing agencies, group home facilities, and other providers of foster care, child care, or adoption services that need to determine the fitness of individuals to care for or adopt children.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone who makes a report pursuant to the reporting laws, cooperates with the county Department of Social Services in a protective services assessment, testifies in any judicial proceeding resulting from a protective services report or assessment, or otherwise participates in the program authorized by law is immune from any civil or criminal liability that might otherwise be incurred or imposed for such action, provided that the person was acting in good faith.

In any proceeding involving liability, good faith is presumed.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has cause to suspect that a child is abused, neglected, or dependent shall report the case to the Department of Social Services in the county where the child resides. The report may be made orally, by telephone, or in writing.

Content of Reports

The report shall contain information as is known to the reporter, including:

  • The name and address of the child and the child’s parent(s), guardian, or caregiver
  • The age of the child
  • The names and ages of other children in the home
  • The present whereabouts of the child, if not at the home address
  • The nature and extent of any injury or condition resulting from abuse or neglect
  • Any other information that the reporter believes might be helpful in establishing the need for protective services or court intervention
Reporting Suspicious Deaths

A mandated reporter who has cause to believe that a child has died as a result of maltreatment shall report the case to the department.

The department shall immediately ascertain if other children are in the home and in need of protective services or immediate removal from the home.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports shall be made to the Department of Social Services in the county where the child resides.

Upon receipt of any report of sexual abuse of the child in a child care facility, the director shall notify the State Bureau of Investigation within 24 hours or on the next workday.

Initial Screening Decisions

When a report of abuse, neglect, or dependency is received, the director of the department of social services shall make a prompt and thorough assessment, using either a family assessment response or an investigative assessment response, in order to ascertain the facts of the case, the extent of the abuse or neglect, and the risk of harm to the juvenile, in order to determine whether protective services should be provided or the complaint filed as a petition.

Agency Conducting the Assessment/Investigation

When a report of abuse, neglect, or dependency is received, the director of the Department of Social Services shall conduct the assessment or investigation.

Assessment/Investigation Procedures

The assessment and evaluation shall include a visit to the place where the child resides, except when the report alleges abuse or neglect in a child care facility. When a report alleges abuse or neglect in a child care facility, a visit to the place where the child resides is not required. When the report alleges abandonment, the assessment shall include a request from the director to law enforcement officials to investigate through the North Carolina Center for Missing Persons and other national and State resources whether the child is a missing child.

In regulation: When a report is received, the county director shall check the county agency’s records and the State central registry to ascertain if any previous reports have been made concerning the alleged child victim.

The county director shall make an investigation to assess:

  • Whether the specific environment in which the child is found meets the child’s need for care and protection
  • The facts regarding the existence of abuse, neglect, or dependency
  • The nature and extent of any injury or condition resulting from abuse, neglect, or dependency
  • The risk of harm to and need for protection of the child

There shall be face-to-fact interviews with the alleged child victim, the parent or caregiver, the alleged perpetrator, and any person who has information about the condition of the child.

The county director shall implement a structured decision-making process that includes assessments of the immediate safety and future risk of harm to the child and the family’s strengths and needs. In addition, there shall be documentation of an assessment of all of the information obtained during the investigation, any safety response plan, and the case decision.

Timeframes for Completing Investigations

When the report alleges abuse, the director shall immediately, but no later than 24 hours after receipt of the report, initiate the assessment. When the report alleges neglect or dependency, the director shall initiate the assessment within 72 hours following receipt of the report. When the report alleges abandonment, the director shall immediately initiate an assessment, take appropriate steps to assume temporary custody of the child, and take appropriate steps to secure an order for nonsecure custody of the child.

Classification of Reports

A report is considered ‘found’ when an investigation reveals the presence of abuse, neglect, or dependency. A report is considered ‘not found’ when a thorough investigation does not reveal abuse, neglect, or dependency.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Any person or institution that has cause to suspect abuse or neglect shall report.

Reporting by Other Persons

All persons who have cause to suspect that any juvenile is abused, neglected, or dependent, or has died as the result of maltreatment, shall report.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when a reporter has cause to suspect that any juvenile is abused, neglected, or dependent, or has died as the result of maltreatment.

Privileged Communications

No privilege shall be grounds for failing to report, even if the knowledge or suspicion is acquired in an official professional capacity, except when the knowledge or suspicion is gained by an attorney from that attorney’s client during representation only in the abuse, neglect, or dependency case. No privilege, except the attorney-client privilege, shall be grounds for excluding evidence of abuse, neglect, or dependency.

Inclusion of Reporter’s Name in Report

The report must include the name, address, and telephone number of the reporter.

Disclosure of Reporter Identity

The Department of Social Services shall hold the identity of the reporter in strictest confidence, except that the department shall disclose confidential information regarding the identity of the reporter to any Federal, State, or local government entity or its agent with a court order. The department may only disclose confidential information regarding the identity of the reporter to a Federal, State, or local government entity or its agent without a court order when the entity demonstrates a need for the reporter’s name to carry out the entity’s mandated responsibilities.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

[When imposing a sentence upon conviction of a crime,] the court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.

An aggravated or mitigated sentence is allowed if the jury or the court finds that aggravating factors exist or the court finds that mitigating factors exist. In such case, the court may depart from the presumptive range of sentences specified in § 15A-1340.17(c)(2). If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range described in [the chart of punishments in] § 15A-1340.17(c)(4). If the court finds that mitigating factors are present and are sufficient to outweigh any aggravating factors that are present, the court may impose a sentence that is permitted by the mitigated range described in § 15A-1340.17(c)(3). Aggravating factors include:

  • The offense involved the sale or delivery of a controlled substance to a minor.
  • The offense is the manufacture of methamphetamine and was committed where a person under age 18 lives, was present, or was otherwise endangered by exposure to the drug, its ingredients, its byproducts, or its waste.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

When a petition alleges that a child is abused, neglected, or dependent, the court shall appoint a guardian ad litem (GAL) to represent the child.

In every case where a nonattorney is appointed as a GAL, an attorney shall be appointed in the case in order to ensure protection of the child’s legal rights throughout the proceeding.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

The Office of Guardian ad Litem Services is established in the Administrative Office of the Courts to provide services in accordance with § 7B-601 to abused, neglected, or dependent children involved in judicial proceedings and to ensure that all participants in these proceedings are adequately trained to carry out their responsibilities. Each local program shall consist of volunteer GALs, at least one program attorney, a program coordinator who is a paid State employee, and any clerical staff the Administrative Office of the Courts, in consultation with the local program, deems necessary. The Administrative Office of the Courts shall adopt rules and regulations necessary and appropriate for the administration of the program.

Specific Duties

The GAL and attorney advocate have standing to represent the child in all actions to which they have been appointed. The appointment shall terminate when the permanent plan has been achieved for the child and approved by the court. The court may reappoint the GAL pursuant to a showing of good cause upon motion of any party, including the GAL or the court.

The duties of the GAL program shall be:

  • To make an investigation to determine the facts, the needs of the child, and the available resources within the family and community to meet those needs
  • To facilitate, when appropriate, the settlement of disputed issues
  • To offer evidence and examine witnesses at adjudication
  • To explore options with the court at the dispositional hearing
  • To conduct follow-up investigations to ensure that the orders of the court are executed properly
  • To report to the court when the needs of the child are not met
  • To protect and promote the best interests of the child until formally relieved of the responsibility by the court

The court may authorize the GAL to accompany the juvenile to court in any criminal action wherein the juvenile may be called on to testify in a matter relating to abuse.

The GAL has the authority to obtain any information or reports, whether or not confidential, that may in the GAL’s opinion be relevant to the case. No privilege other than the attorney-client privilege may be invoked to prevent the GAL and the court from obtaining such information. The confidentiality of the information or reports shall be respected by the GAL, and no disclosure of any information or reports shall be made to anyone except by order of the court or unless otherwise provided by law.

How the Representative Is Compensated

An attorney or GAL shall be paid a reasonable fee fixed by the court or by direct engagement for specialized GAL services through the Administrative Office of the Courts.

The court may require payment of the fee for an attorney or GAL from a person other than the child. In no event shall the parent or guardian be required to pay the fees for a court-appointed attorney or GAL in an abuse, neglect, or dependency proceeding unless the child has been adjudicated to be abused, neglected, or dependent or, in a proceeding to terminate parental rights, unless the parent’s rights have been terminated. If the party is ordered to reimburse the State for attorney or GAL fees and fails to comply with the order at the time of disposition, the court shall file a judgment against the party for the amount due the State.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

The Department of Social Services shall develop a written out-of-home family services agreement within 30 days of admission of a child in a family foster home.

In policy: An out-of-home family services agreement is implemented for all families when the child is placed in the custody of the department, whether or not the child is removed from the home. For children in the legal custody of the department, the agreement shall be completed within 30 days of removal of the child from the home.

Who May Participate in the Case Planning Process

The out-of-home family services agreement shall be developed in cooperation with the child, parents, guardian or legal custodian, and foster parents when possible.

In policy: The social worker is responsible for immediately engaging the family, both maternal and paternal, in the planning process, which is focused on correcting the conditions that caused the department to be involved in the family. Whether or not the child enters custody or placement responsibility, the planning process shall involve the family and children (appropriate to their age and ability) and placement providers.

Contents of a Case Plan

The out-of-home family services agreement shall be based upon an assessment of the needs of the child, parents, or guardian. The agreement shall include goals stated in specific, realistic, and measurable terms and plans that are action-oriented, including responsibilities of staff, parents or guardian, other family members, legal custodian, foster parents, and the child.

In policy: The out-of-home family services agreement is used to define the primary permanency plan, identify the family’s strengths and needs, set objectives and case activities to assist the family in resolving those issues that place the child at risk, specify consequences if the plan does or does not succeed, and to establish the alternative permanency plan if the primary plan does not succeed.

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

Reasonable efforts to preserve or reunify families may be made concurrently with efforts to plan for the juvenile’s adoption, to place the juvenile with a legal guardian, or to place the juvenile in another permanent arrangement.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

In any case in which custody is removed from a parent, guardian, or custodian, the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within 6 months thereafter. Within 12 months of the date of the initial order removing custody, there shall be a review hearing designated as a permanency planning hearing. Review hearings after the initial permanency planning hearing shall be designated as subsequent permanency planning hearings. The subsequent permanency planning hearings shall be held at least every 6 months thereafter or earlier as set by the court to review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile.

If the court finds that a proceeding to terminate the parental rights of the child’s parents is necessary in order to perfect the primary permanent plan for the juvenile, the director of the Department of Social Services shall file a petition to terminate parental rights within 60 calendar days from the date of the entry of the order.

Persons Entitled to Attend Hearings

Notice of a hearing shall be provided to:

  • The parents
  • The child if he or she is age 12 or older
  • The guardian
  • The person providing care for the child
  • The custodian or agency with custody
  • The guardian ad litem
  • Any other person or agency the court may specify

A person providing care for the juvenile shall not be made a party to the proceeding solely based on receiving notice and the right to be heard.

Determinations Made at Hearings

At each hearing, the court shall determine:

  • Whether services have been offered to reunite the child with either parent
  • Whether visitation has occurred and whether the visitation plan should be modified
  • Whether efforts to reunite the child with either parent clearly would be futile or inconsistent with the child’s safety and need for a safe, permanent home
  • Whether the child’s current foster care placement is appropriate
  • If the child is age 16 or 17, whether there is an Independent Living assessment and, if appropriate, an Independent Living plan
  • When and if termination of parental rights should be considered

At any permanency planning hearing, the court shall additionally consider the following:

  • Whether the child can be placed with a parent within the next 6 months
  • When the child’s placement with a parent is unlikely within 6 months:
    • Whether legal guardianship or custody with a relative or another suitable person should be established
    • Whether adoption should be pursued
    • Whether the child should remain in the current placement or be placed in another permanent living arrangement
  • Whether the county department has made reasonable efforts to implement the permanent plan for the child
  • Whether the parent:
    • Is making adequate progress under the case plan
    • Is actively participating in or cooperating with the plan
    • Remains available to the court, the department, and the child’s guardian ad litem
    • Is acting in a manner inconsistent with the health or safety of the child
  • If the child is age 14 or older:
    • The services provided to assist the child in making a transition to adulthood
    • The steps the county department is taking to ensure that the foster family or other care provider follows the reasonable and prudent parent standard
    • Whether the child has regular opportunities to engage in age-appropriate or developmentally appropriate activities
Permanency Options

At any permanency planning hearing, the court shall adopt one or more of the following permanent plans the court finds is in the child’s best interest:

  • Reunification
  • Adoption
  • Guardianship
  • Custody to a relative or other suitable person
  • Another Planned Permanent Living Arrangement pursuant to § 7B-912
  • Reinstatement of parental rights pursuant to § 7B-1114

 

Determining the Best Interests of the Child

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Current Through March 2016

An order placing or continuing the placement of a juvenile in the nonsecure custody of a county Department of Social Services shall contain:

  • A finding that the juvenile’s continuation in or return to the juvenile’s own home would be contrary to the juvenile’s health and safety
  • Specific findings as to whether a county department has made reasonable efforts to prevent the need for placement of the juvenile

In determining whether efforts to prevent the placement of the juvenile were reasonable, the juvenile’s health and safety shall be the paramount concern.

This subchapter shall be interpreted and construed to implement the following purposes and policies:

  • To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents
  • To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family
  • To provide services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles’ needs for safety, continuity, and permanence
  • To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents
  • To provide standards, consistent with the Adoption and Safe Families Act of 1997, P.L. 105-89, for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile’s best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may terminate the parental rights upon a finding of one or more of the following:

  • The parent has abused or neglected the child.
  • The parent has willfully left the child in foster care for more than 12 months without showing reasonable progress in correcting the conditions that led to the removal of the child.
  • The child has been in an out-of-home placement for a continuous period of 6 months, and the parent has willfully failed for such period to pay a reasonable portion of the cost of care for the child although financially able to do so.
  • A noncustodial parent has for a period of 1 year or more willfully failed without justification to pay for the care, support, and education of the child, as required by a custody agreement.
  • A putative father of a child born out of wedlock has not established his paternity.
  • The parent is incapable of providing for the proper care of the child as a result of substance abuse, mental retardation, mental illness, or organic brain syndrome.
  • The parent has willfully abandoned the child for at least 6 consecutive months, or the parent has voluntarily abandoned an infant pursuant to § 7B-500 for at least 60 consecutive days.
  • The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home; or has committed murder or voluntary manslaughter of the other parent of the child.
  • The parental rights of the parent to another child have been terminated involuntarily, and the parent lacks the ability or willingness to establish a safe home.
  • The parent has been convicted of a sexually related offense that resulted in the conception of the child.
Circumstances That Are Exceptions to Termination of Parental Rights

No parental rights shall be terminated for the sole reason that the parents are unable to care for the child on account of their poverty.

Circumstances Allowing Reinstatement of Parental Rights

A child whose parent’s rights have been terminated, the guardian ad litem attorney, or a county Department of Social Services with custody of the child may file a motion to reinstate the parent’s rights if all of the following conditions are satisfied:

  • The child is at least age 12 or, if the child is younger than 12, the motion alleges extraordinary circumstances requiring consideration of the motion.
  • The child does not have a legal parent, is not in an adoptive placement, and is not likely to be adopted within a reasonable period of time.
  • The order terminating parental rights was entered at least 3 years before the filing of the motion, unless the child’s permanent plan is no longer adoption.

At the hearing on the motion, the court shall consider whether reinstatement is in the child’s best interests, based on the following criteria:

  • What efforts were made to achieve adoption or a permanent guardianship
  • Whether the parent has remedied the conditions that led to the termination of parental rights
  • Whether the child would receive proper care and supervision in a safe home if placed with the parent
  • The child’s age, maturity, and ability to express a preference
  • The parent’s willingness to resume contact with the child and to have parental rights reinstated
  • The child’s willingness to resume contact with the parent
  • Services that would be needed by the child and the parent if rights were reinstated
  • Any other criteria the court deems necessary

At any hearing under this section, the court may do one of the following:

  • Enter an order for visitation
  • Order that the juvenile be placed in the former parent’s home and supervised by the department

The court shall either dismiss or grant a motion for reinstatement of parental rights within 12 months from the date the motion was filed, unless the court makes written findings why a final determination cannot be made within that time.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means an individual, as defined in § 7B-600, who is appointed by the court to serve as the guardian of the person for a juvenile. The guardian shall have the care, custody, and control of the juvenile, or may arrange a suitable placement for the juvenile and may represent the juvenile in legal actions before any court. The guardian may consent to certain actions on the part of the juvenile in place of the parent including marriage, enlisting in the armed forces and enrollment in school. The guardian also may consent to any necessary remedial, psychological, medical, or surgical treatment for the juvenile.

Purpose of Guardianship

When reunification efforts are determined to be contrary to the health, safety, or best interests of a child who is in the legal custody or placement authority of the county Department of Social Services, the county shall assess relative or kinship placements as a permanency option, including the child’s birth father and paternal relatives. If the family is willing to provide a permanent home for the child but is not willing to adopt, then guardianship and custody should be offered to the family as alternatives.

Guardianship shall be considered only when reunification and adoption are ruled out as permanency options.

When placement with a relative for the purposes of foster care is made, consideration should be made as to the potential for that placement to become permanent through adoption or guardianship if reunification with the parent is not possible.

Guardianship will be considered when:

  • The permanent plan for the child is neither reunification nor adoption.
  • The child has been in agency custody for at least a year.
  • The child has lived with this provider for at least 6 months.
  • It has been determined that continued placement with this caregiver would be in the best interests of the child and meets the child’s need for permanency and safety.
  • The caregiver is willing to assume guardianship of the person of the child.
A Guardian’s Rights and Responsibilities

The guardian shall operate under the supervision of the court with or without bond and shall file only such reports as the court shall require. The guardian shall have the care, custody, and control of the child or may arrange a suitable placement for the child and may represent the child in legal actions before any court. The guardian may consent to certain actions on the part of the child in place of the parent including marriage, enlisting in the Armed Forces of the United States, and enrollment in school. The guardian also may consent to any necessary remedial, psychological, medical, or surgical treatment for the child.

Qualifying the Guardian

Before conducting a review hearing, the court may order the county department to conduct an investigation and file a written report of the investigation regarding the suitability of the guardian.

In policy: As part of its assessment, the county department must determine whether:

  • The caregiver is willing to provide a permanent home through the child’s minority and to assume legal guardianship for the child.
  • The caregiver is willing to provide age-appropriate supervision for the child.
  • The caregiver has sufficient financial resources to meet the child’s basic needs.
  • The caregiver is willing and able to protect the child from continued maltreatment and establish visitation and appropriate contact (including phone calls) with the birth family.
  • The caregiver’s home is safe and appropriate for the child.
  • Any resident in the household has a history of criminal behavior that precludes the family from caring for the child.
  • There have been any substantiated reports of abuse, neglect, or dependency concerning any resident in the home.
  • The caregiver is physically and mentally capable of providing care and supervision.
  • The caregiver has a strong, quality relationship with the child and can provide a nurturing environment for the child.
  • The caregiver has a relationship with the child’s parent that will allow the placement to succeed and the permanent plan to be achieved.
  • The family dynamics in the kinship home will support the child’s continued recovery from abuse or neglect.
  • The caregiver’s health status will permit the kinship care parent to care for the child for the foreseeable future.
Procedures for Establishing Guardianship

In any case in which no parent appears in a hearing with the child or when the court finds it would be in the best interests of the child, the court may appoint a guardian of the person for the child. In any case in which the court has determined that the appointment of a relative or other suitable person as guardian of the person for a child is the permanent plan for the child and appoints a guardian under this section, the guardian becomes a party to the proceeding.

If the court appoints an individual guardian of the person pursuant to this section, the court shall verify that the person being appointed as guardian of the child understands the legal significance of the appointment and will have adequate resources to care appropriately for the child.

In policy: North Carolina law requires the judge who orders a child’s placement or continued placement to consider whether an appropriate placement with a relative is available. If the judge finds that a relative is willing and able to provide proper care and supervision in a safe home, the judge must order placement of the child with the relative.

Legal guardianship can be given to a relative or any other person deemed suitable by the court. Persons other than relatives to consider include foster parents or adults who have a kinship bond with the child, even if they are not related by blood.

Contents of a Guardianship Order

Juvenile court guardianship, as described in § 7B-600, assigns legal authority for the guardian to act on behalf of the child without further department involvement, but with continued supervision of the court.

Juvenile court guardianship does not confer authority over the disposition of a child’s estate or management of the child’s income.

Modification/Revocation of Guardianship

The authority of the guardian shall continue until the guardianship is terminated by court order, the child is emancipated, or the child reaches the age of majority.

The court may terminate the guardianship only if:

  • The court finds that the relationship between the guardian and the child is no longer in the child’s best interests.
  • The guardian is unfit.
  • The guardian has neglected a guardian’s duties.
  • The guardian is unwilling or unable to continue assuming a guardian’s duties.

Upon petition, and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the child. The court may modify or vacate the order in light of changes in circumstances or the needs of the child. Notwithstanding the provision of this subsection, if a guardian of the person has been appointed for the child, and the court also has made findings that guardianship is the permanent plan for the child, the court shall proceed in accordance with § 7B-600(b).

In any case in which the court finds the child to be abused, neglected, or dependent, the jurisdiction of the court to modify any order or disposition made in the case shall continue during the minority of the child, until terminated by order of the court, or until the child is otherwise emancipated.

In policy: A guardian may resign from the position of guardian, but his or her authority cannot be removed unless he or she is determined by the court to be unfit.

Eligibility for Guardianship Subsidy

Persons assuming legal guardianship of children in the custody of the department are not eligible for State foster care board payments. They are eligible for child support paid by the parents. The child also may be eligible for Medicaid, since the guardian’s income is not considered. Countable income includes Social Security benefits, child support payments, and, if applicable, guardianship subsidy.

Guardianship subsidies are only available in counties that elect to provide the subsidy, either through title IV-E waiver or county funds. The State at this point has not approved funding to provide the guardianship subsidy statewide.

Links to Agency Policies

North Carolina Department of Health and Human Services Policy Manual, § 1201(E), Permanent Placement Optionsexternal link

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

A child alleged to be abused, neglected, or dependent may be placed in nonsecure custody with the Department of Social Services in:

  • A licensed foster home
  • A facility operated by the department
  • Any other home or facility, including a relative’s home approved by the court

In placing a child in nonsecure custody, the court shall first consider whether a relative of the child is willing and able to provide proper care and supervision of the child in a safe home.

If the court does not place the child with a relative, the court may consider whether nonrelative kin is willing and able to provide proper care and supervision of the child in a safe home. Nonrelative kin is an individual having a substantial relationship with the child.

In the case of a juvenile member of a State-recognized Tribe, nonrelative kin also includes any member of a State-recognized Tribe or a member of a federally recognized Tribe, whether or not there is a substantial relationship with the child. The court may order the department to notify the child’s State-recognized Tribe of the need for nonsecure custody for the purpose of locating relatives or nonrelative kin for placement. The court may order placement of the child with nonrelative kin if the court finds the placement is in the child’s best interests.

In placing a child in out-of-home care, the court shall first consider whether a relative of the child is willing to provide care for the child.

Requirements for Placement with Relatives

The relative must be willing and able to provide proper care and supervision of the child in a safe home.

If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the child with the relative unless the court finds that the placement is contrary to the best interests of the child.

Requirements for Placement of Siblings

Exceptions to the number of children that may be placed in foster family home or therapeutic foster home at any time may be made if written documentation is submitted to the licensing authority that siblings will be placed together and the foster home complies with fire and building safety regulations. The out-of-home family services agreement for each sibling shall specify that siblings will be placed together and shall also address the foster parents’ skill, stamina, and ability to care for the children.

Relatives Who May Adopt

A relative, including a grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, or great-grandparent, may adopt the child.

Requirements for Adoption by Relatives

A preplacement assessment is not required if the child is placed directly with a relative.

The Department of Health and Human Services shall ensure that the criminal histories of all prospective adoptive parents seeking to adopt a minor who is in the custody or placement responsibility of a county Department of Social Services, and the criminal histories of all individuals age 18 or older who reside in the prospective adoptive home, are checked prior to placement.

 

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the diligent use of abuse prevention or reunification services by the Department of Social Services when a juvenile remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. If a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts are the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent or eliminate the need for placement of the juvenile out of the home
  • To develop and implement a permanent plan for the child when a court determines that the juvenile is not to be returned home
When Reasonable Efforts Are NOT Required

The court shall direct that reasonable efforts for reunification shall not be required if the court makes written findings of fact pertaining to any of the following:

  • A court has determined that aggravated circumstances exist because the parent has committed, encouraged the commission of, or allowed the continuation of any of the following upon the juvenile:
    • Sexual abuse
    • Chronic physical or emotional abuse
    • Torture
    • Abandonment
    • Chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile
    • Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect
  • A court has terminated involuntarily the parental rights of the parent to another child of the parent.
  • A court has determined that the parent:
    • Has committed murder or voluntary manslaughter of another child of the parent
    • Has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent
    • Has committed a felony assault resulting in serious bodily injury to the child or another child of the parent
    • Has committed sexual abuse against the child or another child of the parent
    • Has been required to register as a sex offender on any government-administered registry

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent, adoptive parent, or legal guardian who suffers from a progressive chronic or irreversibly fatal illness may petition for the appointment of a standby guardian.

How to Establish a Standby Guardian

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

  • Identify the petitioner, the minor child, and the person designated to be the standby guardian
  • State that the authority of the standby guardian is to become effective upon the petitioner’s death, incapacity, or debilitation, with the consent of the petitioner, or upon the petitioner’s signing of a written consent stating that the standby guardian’s authority is in effect, whichever occurs first
  • State that the petitioner suffers from a progressively chronic illness or an irreversible fatal illness, and the basis for such a statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

A parent also may designate a standby guardian by means of a written designation, signed by the parent in the presence of two witnesses who are at least age 18, other than the standby guardian, who shall also sign the writing.

Evidence is required at the hearing to determine whether the requirements of the statute have been satisfied.

How Standby Authority is Activated

The authority of the standby guardian commences upon the parent’s death, mental incapacity, physical debilitation plus consent, or written consent alone. An attending physician must document the parent’s incapacity or debilitation.

The standby guardian must file confirming documents with the court within 90 days of the triggering event. If the guardianship is by written designation, the standby guardian must petition the court within 90 days for appointment as guardian.

Involvement of the Noncustodial Parent

Citation: Gen. Stat. § 35A-1373
Notice to any biological or adoptive parent is required, along with a copy of the petition. The court may proceed if no complaint for custody of the child has been filed within 30 days.

Authority Relationship of the Parent and the Standby

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

Withdrawing Guardianship

The petitioner may revoke a judicially created guardianship by executing a written revocation, filing it with the court, and notifying the standby guardian.

The standby guardian may at any time before the commencement of the person’s authority renounce the appointment by executing a written renunciation, filing it with the court, and promptly providing the petitioner with a copy of the renunciation.

The parent may revoke a written designation at any time prior to commencement by notifying the standby guardian in writing.

When the authority of the standby guardian is due to incapacity or debilitation, and the parent is subsequently restored to capacity or ability to care for the child, the authority of the standby guardian based on that incapacity or debilitation shall be suspended.

 

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.

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

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US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

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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

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

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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

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11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

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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.”)

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9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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