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

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 Dakota

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused child’ means an individual younger than age 18 who is suffering from abuse as defined in § 14-09-22(1), caused by a person responsible for the child’s welfare.

A child is abused when a parent, adult family or household member, guardian, or other custodian of any child willfully inflicts or allows to be inflicted upon the child mental injury or bodily injury, substantial bodily injury, or serious bodily injury as defined by § 12.1-01-04. A child is abused when a person who provides care, supervision, education, or guidance for a child unaccompanied by the child’s parent, adult family or household member, guardian, or custodian in exchange for money, goods, or other services and while providing such services commits an offense under this section.

‘Deprived child’ means a child who is a victim of human trafficking as defined in title 12.1.

Neglect

‘Neglected child’ means a deprived child as defined in chapter 27-20.

‘Deprived child’ means a child who:

  • Is without proper parental care or control, subsistence, education, or other care or control necessary for the child’s physical, mental, or emotional health or morals; and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian
  • Has been placed for care or adoption in violation of law
  • Is without proper parental care, control, education, or other care and control necessary for the child’s well-being because of the physical, mental, emotional, or other illness or disability of the child’s parent or parents; and such lack of care is not due to a willful act of commission or act of omission by the child’s parents, and care is requested by a parent
  • Is in need of treatment and whose parents, guardian, or other custodian have refused to participate in treatment as ordered by the juvenile court
  • Was subject to prenatal exposure to chronic and severe use of alcohol or any controlled substance in a manner not lawfully prescribed by a practitioner
  • Is present in an environment that subjects the child to exposure to a controlled substance or drug paraphernalia

‘Prenatal exposure to a controlled substance’ means use of a controlled substance by a pregnant woman for a nonmedical purpose during pregnancy as evidenced by withdrawal symptoms in the child at birth, results of a toxicology test performed on the mother at delivery of the child at birth, or medical effects or developmental delays during the child’s first year of life that medically indicate prenatal exposure to a controlled substance.

Sexual Abuse/Exploitation

‘Sexually abused child’ means an individual younger than age 18 who is subjected by a person responsible for the child’s welfare or by any individual to sexual abuse, as described in §§ 12.1-20-01 through 12.1-20-07 [including gross sexual imposition, continuous sexual abuse of a child, sexual imposition, corruption or solicitation of minors, luring minors by computer or other electronic means, sexual abuse of wards, sexual exploitation by a therapist, or sexual assault] and §§ 12.1-20-11 through 12.1-20-12.2 [including incest, deviate sexual act, indecent exposure, or surreptitious intrusion], or sexual exploitation, as described in chapter 12.1-27.2 [sexual performances by children].

Emotional Abuse

A child is an ‘abused child’ when the person responsible for the child’s welfare inflicts or allows to be inflicted upon the child a mental injury.

Abandonment

Citation: Cent. Code § 27-20-02
The term ‘abandon’ means:

  • Failure by a noncustodial parent, without justifiable cause, to communicate significantly with the child or to provide for the care and support of the child as required by law
  • Actions by a custodial parent that include:
    • Leaving the child for an indefinite period without making firm and agreed upon plans with the child’s immediate caregiver for the parents’ resumption of physical custody
    • Following the child’s birth or treatment at a hospital, failing to arrange for the child’s discharge within 10 days after the child no longer requires hospital care
    • Willfully failing to furnish food, shelter, clothing, or medical attention that is reasonably sufficient to meet the child’s needs

‘Abandoned infant’ means a child who has been abandoned before reaching age 1.

Standards for Reporting

Citation: Cent. Code § 50-25.1-03
A report is required when a mandatory reporter knows or has reasonable cause to suspect that a child is abused or neglected or has died as a result of abuse or neglect.

Persons Responsible for the Child

‘A person responsible for the child’s welfare’ means a person who has responsibility for the care or supervision of a child and who is:

  • The child’s parent, an adult family member of the child, any member of the child’s household, the child’s guardian, or the child’s foster parent
  • An employee of, or any person providing care for the child in, a public or private school or child care setting
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’ includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

The sentence for an offense under § 12.1-17-01 (simple assault), 12.1-17-01.1 (assault), 12.1-17-02 (aggravated assault), 12.1-17-03 (reckless endangerment), 12.1-17-04 (terrorizing), or 12.1-17-05 (menacing) against an actor’s family or household member, as defined in § 14-07.1-01, must include an order to complete a domestic violence offender treatment program, unless the court makes written findings for the record explaining why such an order would be inappropriate.

Persons Included in the Definition

‘Family or household member’ means:

  • A spouse or former spouse
  • Family member
  • A parent or child
  • Persons related by blood or marriage
  • Persons who are in a dating relationship
  • Persons who are presently residing together or who have resided together in the past
  • Persons who have a child in common regardless of whether they are or have been married or have lived together at any time
  • For the purpose of the issuance of a domestic violence protection order, any other person with a sufficient relationship to the abusing person, as determined by the court

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

All reports made under this chapter, as well as any other information obtained, are confidential and must be made available to persons listed below.

Persons or Entities Allowed Access to Records

Reports and information shall be made available to:

  • A physician who reasonably suspects that a child may have been abused or neglected
  • A person who is authorized to place a child in protective custody when necessary to determine whether to place the child in protective custody
  • Authorized staff of the department, children’s advocacy centers, appropriate State and local child protection team members, or citizen review committee members
  • Any person who is the subject of a report
  • Public officials and their authorized agents who require the information in connection with the discharge of their official duties
  • A court when it is necessary for the determination of an issue before it
  • A person engaged in bona fide research
  • A mandated reporter who has made a report of suspected child abuse or neglect, if the child is likely to or continues to come before the reporter in his or her official or professional capacity
  • Parents or a legally appointed guardian of a child who is suspected of being, or having been, abused or neglected
When Public Disclosure of Records is Allowed

This issue is not addressed in the statutes reviewed.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, other than the alleged violator, participating in good faith in making a report, assisting in an investigation or assessment, furnishing information, in providing protective services, or who is a member of the child fatality review panel is immune from any civil or criminal liability–except for criminal liability as provided for under penalties for failure to report and false reporting–that otherwise might result from reporting the alleged case of abuse, neglect, or death resulting from child abuse or neglect.

For the purpose of any civil or criminal proceeding, the good faith of any person who is required to report cases of child abuse, neglect, or death must be presumed.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

All mandated reporters shall immediately report cases of known or suspected abuse or neglect to the Department of Human Services. Oral reports must be followed by written reports within 48 hours if requested by the department.

Content of Reports

A requested written report must include information specifically sought by the department if the reporter possesses or has reasonable access to the information.

Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports must be made to the Department of Human Services.

Initial Screening Decisions

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

Agency Conducting the Assessment/Investigation

The department, in accordance with rules adopted by the department, immediately shall initiate an assessment of any report of child abuse or neglect.

If the report alleges a violation of a criminal statute involving sexual or physical abuse, the department and an appropriate law enforcement agency shall coordinate the planning and execution of their investigation efforts to avoid a duplication of fact-finding efforts and multiple interviews. The department or the law enforcement agency may refer the case to a children’s advocacy center for a forensic interview, forensic medical examination, and other services.

Assessment/Investigation Procedures

The department shall initiate an assessment of any report of child abuse or neglect including, when appropriate, the assessment of the home or the residence of the child, any school or child care facility attended by the child, and the circumstances surrounding the report of abuse or neglect. As part of the assessment, the department shall:

  • Interview, without the consent of a person responsible for the child’s welfare, the alleged abused or neglected child and any other child who currently resides or who has resided with the person responsible for the child’s welfare or the alleged perpetrator
  • Conduct the interview at a school, child care facility, or any other place where the alleged abused or neglected child or other child is found

The department shall adopt guidelines for case referrals to a children’s advocacy center. When cases are referred to a children’s advocacy center, all interviews of the alleged abused or neglected child conducted at the children’s advocacy center shall be audio-recorded or video-recorded.

In regulation: Assessments of reports of suspected child abuse or neglect must reflect:

  • An assessment process designed to collect sufficient information to make a decision whether services are required to provide for the protection and treatment of an abused or neglected child
  • Assessment techniques that include interviewing and observing the subject, the child victim, and other interested or affected persons and documenting those interviews and observations
  • Conclusions and a summary based on information gathered by the assessment
Timeframes for Completing Investigations

All nonemergency child abuse or neglect assessments must be initiated no later than 72 hours after receipt of a report by the assessing agency unless the department prescribes a different time in a particular case. In cases involving a serious threat or danger to the life or health of a child, the assessment and any appropriate protective measures must commence immediately upon receipt of a report by the assessing agency.

Assessments of reports of suspected child abuse or neglect must be completed, a decision made, and a written report completed and submitted to the regional child protection service supervisor or other person designated by the department within 62 days from the date of receipt of the report unless an extension of the time is requested of and granted by the department.

Classification of Reports

Upon completion of the assessment of the initial report of child abuse or neglect, a decision must be made whether services are required to provide for the protection and treatment of an abused or neglected child.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

The following professionals are required to report:

  • Physicians, nurses, dentists, dental hygienists, optometrists, medical examiners or coroners, or any other medical or mental health professionals
  • Religious practitioners of the healing arts
  • Schoolteachers, administrators, or school counselors
  • Addiction counselors, social workers, child care workers, or foster parents
  • Police or law enforcement officers, juvenile court personnel, probation officers, division of juvenile services employees
  • Members of the clergy
Reporting by Other Persons

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

Institutional Responsibility to Report

Reports involving known or suspected institutional child abuse or neglect must be made and received in the same manner as all other reports made under this chapter.

An employer is prohibited from retaliating against an employee solely because the employee in good faith reported having reasonable cause to suspect that a child was abused or neglected, or died as a result of abuse or neglect, or because the employee is a child with respect to whom a report was made.

There is a rebuttable presumption that any adverse action within 90 days of a report is retaliatory. For purposes of this subsection, an ‘adverse action’ is action taken by an employer against the person making the report or the child with respect to whom a report was made, including:

  • Discharge, suspension, termination, or transfer from any facility, institution, school, agency, or other place of employment
  • Discharge from or termination of employment
  • Demotion or reduction in remuneration for services
  • Restriction or prohibition of access to any facility, institution, school, agency, or other place of employment or persons affiliated with it
Standards for Making a Report

A report is required when a reporter has knowledge of or reasonable cause to suspect that a child is abused or neglected, if the knowledge or suspicion is derived from information received by that person in that person’s official or professional capacity.

A person who has knowledge of or reasonable cause to suspect that a child is abused or neglected based on images of sexual conduct by a child discovered on a workplace computer shall report the circumstances to the department.

Privileged Communications

A member of the clergy is not required to report such circumstances if the knowledge or suspicion is derived from information received in the capacity of spiritual adviser.

Any privilege of communication between husband and wife or between any professional person and the person’s patient or client, except between attorney and client, cannot be used as grounds for failing to report.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

All reports are confidential and must be made available to a parent, the child’s guardian, and any person who is the subject of a report; provided, however, that the identity of persons reporting or supplying information is protected.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Deprived child’ means a child who:

  • Was subject to prenatal exposure to chronic and severe use of alcohol or any controlled substance in a manner not lawfully prescribed by a practitioner
  • Is present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia as prohibited by § 19-03.1-22.2

Unless a greater penalty is otherwise provided by law, a person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia is guilty of a Class C felony.

Unless a greater penalty is otherwise provided by law, a person who violates the subsection above, and a child or vulnerable adult actually suffers bodily injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia, is guilty of a Class B felony.

If the exposure, ingestion, inhalation, or contact results in the death of the child or vulnerable adult, the person is guilty of a Class A felony.

‘Prenatal exposure to a controlled substance’ means use of a controlled substance, as defined in chapter 19-03.1, by a pregnant woman for a nonmedical purpose during pregnancy as evidenced by withdrawal symptoms in the child at birth, results of a toxicology test performed on the mother at delivery of the child at birth, or medical effects or developmental delays during the child’s first year of life that medically indicate prenatal exposure to a controlled substance.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court shall appoint a guardian ad litem (GAL) to represent the child in every case involving an abused or neglected child that results in a judicial proceeding.

In court rules: A GAL must be appointed if the court finds an appointment is necessary to protect the best interests of the child involved. In determining whether to appoint a GAL, the court shall consider, among other factors, whether:

  • There is an allegation of sexual abuse.
  • There is an allegation of domestic violence resulting in serious bodily injury or involving the use of a dangerous weapon.
  • There is an allegation of a pattern of domestic violence occurring within a reasonable time proximate to the proceeding resulting in a reasonable fear for the safety of a party or the minor child.
  • The child has special needs.
  • The child has, at any time, been placed in foster care or in the home of a third party.
  • There is an allegation the child is in an unstable environment.
  • There has been repeated post-decree litigation involving custody or visitation issues.
  • The interests of the child and either or both parents are in substantial conflict.
  • A GAL could provide the court with significant information not otherwise available or likely to be presented by the parents.
  • There are any other areas of special concern that may impact the best interests of the child.
The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

To be eligible for appointment as a GAL, an attorney must have completed 18 hours of GAL-related training. To remain eligible to be appointed as GAL, an individual shall complete an additional 18 hours of GAL-related training every 3 years.

Specific Duties

A GAL shall advocate the best interests of the child as to legal custody, physical placement, visitation, and support. A GAL shall function independently, in the same manner as an attorney for a party to the action, and, consistent with the Rules of Professional Conduct, shall consider, but not be bound by, the wishes of the child or others as to the best interests of the child.

After appointment, a GAL shall:

  • Work with a custody investigator, if appointed, to coordinate investigation activities and avoid duplicating services
  • Interview and observe the child to ascertain the facts relevant to custody, the child’s wishes, the need for independent evaluation, and the need for and appropriateness of interim judicial relief
  • Advise the child and the child’s parents of the role and responsibilities of the GAL
  • Interview potential witnesses, lay and expert, with relevant knowledge of the child or parties
  • Participate in meetings impacting the life of the child, including permanency planning meetings and other activities that may be directed by the court

A GAL may apply for a court order to protect the child, to obtain temporary relief, to determine custody, or to determine visitation. A GAL shall participate whenever any party requests an interim court order that may affect the child. He or she also may request an independent court-ordered evaluation or study, including a custody investigation.

The GAL shall also participate in all pretrial procedures and negotiations and endeavor to resolve the case without the need for a trial. The GAL may not disclose or participate in the disclosure of information to any person who is not a party to the case, except as necessary to perform the GAL duties or as may be specifically provided by law.

How the Representative Is Compensated

The supreme court shall pay reasonable compensation for a GAL. If, after due notice to the parents or other persons legally obligated to care for and support the child, and to a child older than age 18, and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses payable by the supreme court, the court may order them to pay the same and prescribe the manner of payment.

Unless it finds that there is no likelihood that the party is or will be able to pay attorney’s fees and expenses, the court shall order the parents (or other persons legally obligated to care for and support the child) and the child, if older than age 18, to reimburse the presumed amount of indigent defense costs and expenses, as determined by the Commission on Legal Counsel for Indigents, and the court shall notify the party of the right to a hearing on the reimbursement amount. If the party or the State requests a hearing within 30 days of receiving notice, the court shall schedule a hearing at which the actual amount of attorney’s fees and expenses must be shown. In determining the amount of reimbursement and method of payment, the court shall consider the financial resources of the party and the nature of the burden that reimbursement of costs and expenses will impose.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A permanency hearing will be conducted with respect to a child who is in foster care to determine the permanency plan for the child.

Who May Participate in the Case Planning Process

Every county social service board must have a county permanency planning child and family team. The supervising agency must invite the child’s parents, the foster parents, and the guardian ad litem to participate in the permanency planning meeting for the foster child unless good cause exists to exclude any person from the planning meeting.

The foster parents shall participate in the permanency planning child and family team for the child. The foster parents shall cooperate in carrying out the objectives and goals of the permanency plan for the foster child in their care.

Contents of a Case Plan

The plan must include:

  • Whether and, if applicable, when the child will be returned to the parent
  • Whether and, if applicable, when the child will be placed for adoption, and the State will file a petition for termination of parental rights
  • Whether and, if applicable, when a fit and willing relative or other appropriate individual will be appointed as a legal guardian
  • Whether, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that the joint placement would be contrary to the safety or well-being of any of the siblings
  • Whether, if applicable, in the case of siblings removed from their home who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is determined to be contrary to the safety or well-being of any of the siblings
  • In cases where there is a compelling reason that it would not be in the child’s best interests to return home, to have parental rights terminated, to be placed for adoption, to be placed with a fit and willing relative, or to be placed with a legal guardian, whether and, if applicable, when the child will be placed in another planned permanent living arrangement
  • In the case of a child who has been placed in foster care outside of the State where the home of the parents is located, or if the parents maintain separate homes outside of the State where the home of the parent who was the child’s primary caregiver is located, whether out-of-State placements have been considered, and if the child is currently in an out-of-State placement, whether the placement continues to be appropriate and in the child’s best interests
  • In the case of a child who has attained age 16, the services needed to assist the child to make the transition from foster care to independent living

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

Efforts to place a child for adoption, with a fit and willing relative or other appropriate individual as a legal guardian, or in another planned permanent living arrangement, may be made concurrently with reasonable efforts [to preserve and reunify the family].

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A permanency hearing shall be held:

  • No more than 12 months after the child has been placed in foster care and every 12 months thereafter
  • Within 30 days of a finding that reasonable efforts to reunify are not required
  • Within 12 months of a hearing conducted on a petition filed under § 27-20-30.1 [requesting that a foster youth who is older than age 18 but younger than age 21 remain in or return to foster care]

In policy: Periodic reviews are conducted quarterly and referred to as the child and family team meeting.

Every child in foster care must have a permanency hearing within 12 months of the child’s entry to foster care or continuing in foster care following a previous permanency hearing. The hearing must be held in a juvenile court or Tribal court of competent jurisdiction. In addition, a permanency hearing must be conducted within 30 days after a court determines that reasonable efforts are not required because:

  • A parent has subjected the child to aggravated circumstances.
  • The parental rights of the parent with respect to another child of the parent have been involuntarily terminated.
Persons Entitled to Attend Hearings

Notice of a hearing shall be provided to:

  • The child
  • The child’s parent
  • The child’s guardian or custodian
  • All parties affected

In policy: Foster parents of the child and any preadoptive parent or relative providing care for the child must be provided with written notice of, and a right to be heard in, any proceeding with respect to the child. A full hearing is required. Paper reviews, ex parte hearings, agreed orders, or other actions or hearings that are not open to the participation of the parents of the child, the child (if age appropriate), and foster parents or preadoptive parents (if any) are not permanency hearings.

Determinations Made at Hearings

At the hearing, the court shall determine whether the purposes of the placement order have been accomplished.

In policy: The periodic review determines:

  • The safety of the child
  • The continuing necessity for and appropriateness of the placement
  • The extent of compliance with the case plan
  • The extent of progress that has been made toward alleviating the causes that necessitated the foster care placement
  • A projected date by which the child may be returned to and safety maintained in the home or placed for adoption or legal guardianship

The periodic review also will determine and assess the steps the agency is taking to ensure the child’s foster family or child care institution is following the reasonable and prudent parent standard and to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities to achieve normalcy.

The permanency hearing shall determine the permanency plan for the child. The hearing also shall:

  • Consider in-State and out-of-State placement options, and if a child is already in an out-of-State placement, whether that placement continues to be appropriate and in the child’s best interests
  • In the case of a child who has reached age 16, the services needed to assist the child to make the transition from foster care to Independent Living
Permanency Options

At a permanency hearing, the court will determine the permanency plan for the child, which may include:

  • Whether and, if applicable, when the child will be returned to the parent
  • Whether and, if applicable, when the child will be placed for adoption and the State will file a petition for termination of parental rights
  • Whether and, if applicable, when a fit and willing relative or other appropriate individual will be appointed as a legal guardian
  • Whether, if applicable, to place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that the joint placement would be contrary to the safety or well-being of any of the siblings
  • Whether, if applicable, in the case of siblings removed from their home who are not jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless it is determined to be contrary to the safety or well-being of any of the siblings
  • In cases in which a compelling reason has been shown that it would not be in the child’s best interests to return home, to have parental rights terminated, to be placed for adoption, to be placed with a fit and willing relative, or to be placed with a legal guardian, whether and, if applicable, when the child, age 16 or older, will be placed in another planned permanent living arrangement

 

Determining the Best Interests of the Child

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Current Through March 2016

If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child’s preference, including whether the child’s preference was based on undesirable or improper influences.

In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence that resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that the parent have residential responsibility.

The best interests and welfare of the child are determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following, when applicable:

  • The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurturing, love, affection, and guidance
  • The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment
  • The child’s developmental needs and the ability of each parent to meet those needs, both in the present and in the future
  • The sufficiency and stability of each parent’s home environment, the impact of extended family, the length of time the child has lived in each parent’s home, and the desirability of maintaining continuity in the child’s home and community
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
  • The moral fitness of the parents, as that fitness impacts the child
  • The mental and physical health of the parents, as that health impacts the child
  • The home, school, and community records of the child and the potential effect of any change
  • Evidence of domestic violence
  • The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests
  • The making of false allegations not made in good faith, by one parent against the other, of harm to a child
  • Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute

 

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 if:

  • The parent has abandoned the child.
  • The child is subjected to aggravated circumstances.
  • The child is a deprived child, and the court finds:
    • The causes of the deprivation are likely to continue and for that reason the child is suffering or will likely suffer serious physical, mental, moral, or emotional harm.
    • The child has been in foster care for at least 450 out of the previous 660 nights.

‘Aggravated circumstances’ means a parent:

  • Abandons, tortures, chronically abuses, or sexually abuses a child
  • Fails to make substantial, meaningful efforts to secure treatment for his or her addiction, mental illness, behavior disorder, or other conditions for 1 year or one-half of the child’s lifetime, measured in days
  • Engages in a sexual offense in which a child is the victim or intended victim
  • Commits one of the following crimes:
    • Murder, manslaughter, or reckless homicide and the victim is another child of the parent
    • Aiding, abetting, attempting, conspiring, or soliciting to commit one of the above crimes, and the victim is a child of the parent
    • Aggravated assault, and the victim is a child of the parent and has suffered serious bodily injury
    • Assault, aggravated assault, reckless endangerment, or terrorizing and a child is the victim or intended victim
  • Has been incarcerated under a sentence for which the latest release date is:
    • In the case of a child age 9 or older, after the child’s majority
    • In the case of a younger child, after the child is twice the child’s current age, measured in days
  • Subjects the child to prenatal exposure to chronic or severe use of alcohol or any controlled substance in a manner not lawfully prescribed
  • Allows the child to be present in an environment subjecting the child to a controlled substance, chemical substance, or drug paraphernalia
Circumstances That Are Exceptions to Termination of Parental Rights

A petition for termination of parental rights need not be filed if:

  • The child is being cared for by a relative approved by the Department of Human Services.
  • The department has documented in the case plan a compelling reason for determining that filing such a petition would not be in the child’s best interests.
  • The department has determined:
    • Reasonable efforts to preserve and reunify the family are required under § 27-20-32.2 to be made with respect to the child.
    • The case plan provides such services as are necessary for the safe return of the child to the child’s home.
    • Such services have not been provided consistent with time periods described in the case plan.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

‘Fit and willing relative or other appropriate individual’ means a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation to be a qualified person and who consents in writing to act as a legal guardian.

The term ‘relative’ means:

  • The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin
  • An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described above
  • An individual recognized in the child’s community as having a relationship with the child similar to a relationship described above
  • The child’s stepparent
Purpose of Guardianship

The court may establish a guardianship as a dispositional alternative if a child has been adjudicated as deprived, unruly, or delinquent.

In policy: Guardianship is considered only after other options such as return home, termination of parental rights, and adoption are ruled out.

A Guardian’s Rights and Responsibilities

A guardian of a child has the powers and responsibilities of a legal custodian if there is a parent with remaining parental rights. If there is no parent with remaining parental rights, the guardian has the rights of a legal custodian and the authority to consent to the child’s adoption, marriage, enlistment in the armed forces of the United States, and surgical and other medical treatment. A guardian is not liable to third persons by reason of the parental relationship for acts of the child. In particular, and without qualifying the foregoing, a guardian has the following powers and duties:

  • The guardian must take reasonable care of the child’s personal effects and commence protective proceedings if necessary to protect other property of the child.
  • The guardian is empowered to facilitate the child’s education, social, or other activities and to authorize medical or other professional care, treatment, or advice.
  • A guardian shall file an annual report with the court informing the court of the status or condition of the child and provide a copy of the report to the child. The report must include changes that have occurred since the previous reporting period and an accounting of the child’s estate.
Qualifying the Guardian

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor is age 14 or older, unless the court finds the appointment contrary to the best interests of the minor.

In policy: Under § 27-20-47(1)(b), the court may appoint ‘a fit and willing relative or other appropriate individual’ as the child’s legal guardian. ‘Fit and willing relative or other appropriate individual’ is defined as a relative or other individual who has been determined, after consideration of an assessment that includes a criminal history record investigation to be a qualified person and who consents in writing to act as a legal guardian.

Procedures for Establishing Guardianship

A person becomes a guardian of a minor upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward. The court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.

Notice of the time and place of the hearing of a petition for the appointment of a guardian of a minor is to be given to:

  • The minor, if the minor is age 14 or older
  • The person who has had the principal care and custody of the minor during the 60 days preceding the date of the petition
  • Any living parent of the minor

Upon hearing, if the court finds that a qualified person seeks appointment, the venue is proper, the required notices have been given, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases, the court may dismiss the proceedings or make any other disposition of the matter that will best serve the interest of the minor. If necessary, the court may appoint a temporary guardian, with the status of an ordinary guardian of a minor, but the authority of a temporary guardian shall not last longer than 6 months.

If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is age 14 or older.

Contents of a Guardianship Order

By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Letters of guardianship must indicate whether the guardian was appointed by will or by court order.

In policy: Generally speaking, the guardian has the rights and responsibilities that a parent would ordinarily have. It may be helpful to think of parental rights and responsibilities as a bundle: In some cases, the guardian will have the entire bundle; in other cases, the court’s order creating the guardianship may divide the bundle between the guardian and a parent or others, such as a grandparent. The division of the bundle of rights and responsibilities will depend on the facts of a given case, with the court being guided by the welfare and best interests of the minor. An order appointing a legal guardianship terminates any authority of a parent that is granted to the legal guardian under that order.

Parental child support responsibility continues with respect to a minor child who is subject to a guardianship order. If a child support order does not exist at the time the guardianship is granted, an order may subsequently be established to ensure that parents fulfill their parental obligations related to support of the child.

The child support obligation does not always end with termination of parental rights. Legal guardians, wards, and parents will need to refer to the order establishing the guardianship and to the order terminating parental rights, if any, to determine the status of a particular right or responsibility.

Modification/Revocation of Guardianship

A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian, or upon the child’s death, adoption, marriage, or attainment of majority. Termination does not affect the guardian’s liability for prior acts nor the guardian’s obligation to account for funds and assets of the child.

A guardian may petition for permission to resign. A petition for permission to resign may include a request for the appointment of a successor guardian. Resignation of a guardian does not terminate the guardianship until it has been approved by the court.

The director, the child if age 14 or older, or any party to the proceeding in which the child’s status was adjudicated may petition for the removal of a guardian on the grounds that the removal would be in the best interests of the child. A petition for removal may include a request for the appointment of a successor guardian.

After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate. If, at any time in the proceeding, the court determines that the interests of the child are, or may be, inadequately represented, it may appoint an attorney to represent the child, giving consideration to the preference of the child if the child is age 14 or older.

Eligibility for Guardianship Subsidy

It is possible to create a legal guardianship in which the ward does not reside with the guardian, but lives in some other setting. This is not the intent of the Department of Human Services’ subsidized guardianship program. To be eligible for the subsidized guardianship, the guardian must agree that the ward’s permanent residence will be with the guardian. In certain instances the ward may be briefly out of the home without affecting the subsidy, such as brief medical treatment.

Persons eligible for subsidy include:

  • Foster youth age 12 and older for whom reunification and adoption have been ruled out as the permanency plan
  • Youth who are legally free for adoption and do not wish to or cannot be adopted
  • Youth in temporary custody whose parents are incapacitated or unwilling to have anything to do with planning for the child and whose parental rights will not be terminated.

Siblings also will be included if one member of the sibling group is age 12 or older. Eligibility is limited to children who have been in the State foster care system for at least 6 months and for whom the State has responsibility for maintenance payments.

Priority is given to youth age 16 and older. Sibling groups also will be given priority status if one member of the group is at least age 16.

In order to receive subsidy payments, the guardian must be at least age 21 and have received contingent approval for a subsidy for the child’s needs prior to the guardianship appointment. Guardianship requires a court assessment and a background check.

Links to Agency Policies

North Dakota Department of Human Services, Subsidized Guardianship Policy Manual

 

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

The term ‘fit and willing relative or other appropriate individual’ means a relative or other individual who has consented in writing to act as a legal guardian.

The term ‘relative’ means:

  • The child’s grandparent, great-grandparent, sibling, half-sibling, aunt, great-aunt, uncle, great-uncle, nephew, niece, or first cousin, which relationship may derive from a marriage or former marriage
  • An individual with a relationship to the child, derived through a current or former spouse of the child’s parent, similar to a relationship described above
  • An individual recognized in the child’s community as having a relationship with the child similar to a relationship described above
  • The child’s stepparent
Requirements for Placement with Relatives

Before the fit and willing relative or other appropriate individual can accept guardianship, an assessment must be made that includes a criminal history record investigation under chapter 50-11.3, and this person must be qualified under chapter 30.1-27 to act as legal guardian.

No person may furnish foster care for children for more than 30 days a year without first procuring a license. This provision does not apply when the care is provided in the home of a person related to the child by blood or marriage. A relative providing care shall submit to a criminal history record investigation as required under § 50-11-06.8.

In regulation: Kinship care provides a monthly maintenance payment to a child residing outside the child’s parental home with a caregiver who is related to that child within the fifth degree of kinship. Before placing a child in kinship care for more than 30 days, the child’s custodian must have completed a family study, a child abuse and neglect background check, and other investigations as the department may determine necessary to demonstrate that:

  • The home in which care is provided is in fit and sanitary condition and properly equipped to provide good care to the child.
  • The caregiver and other adults residing in the home are properly qualified to carry out the duties and responsibilities of a kinship care provider.
  • Kinship care provided in the home is for the public good in accordance with sound social policy and with due regard to the health, morality, and well-being of all children cared for in the home.
  • The home is maintained according to standards prescribed by the department.

Within the limits established by the department, supportive services may provide reimbursements for child care expenses, transportation, clothing, and activity fees.

Requirements for Placement of Siblings

Reasonable efforts must be made to preserve families, reunify families, and maintain family connections, and:

  • To place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that such a joint placement would be contrary to the safety or well-being of any of the siblings
  • In the case of siblings removed from their home who are not jointly placed, to provide for frequent visits or other ongoing interaction between the siblings, unless it is contrary to the safety or well-being of any of the siblings
Relatives Who May Adopt

A relative is any person related to the minor by marriage, blood, or adoption, including a grandparent, brother, sister, stepbrother, stepsister, uncle, or aunt.

Requirements for Adoption by Relatives

The report of the investigation must contain a review of the child’s history; a preplacement adoption assessment of the petitioner, including a criminal history record investigation of the petitioner; a postplacement evaluation of the placement with a recommendation as to the granting of the petition for adoption; and any other information the court requires regarding the petitioner or the minor.

An investigation and report is not required in cases in which a stepparent is the petitioner or the person to be adopted is an adult.

The court may waive the home study requirement if the petitioner is a relative other than a stepparent, the minor has lived with the petitioner for at least 9 months, and no allegations of abuse or neglect have been filed against the petitioner or any member of the petitioner’s household.

 

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise, by the agency granted authority over the child of due diligence in using appropriate and available services to meet the needs of the child and his or her family in order to prevent removal of the child from the child’s family or, after removal, to use appropriate and available services to eliminate the need for removal, to reunite the child and his or her family, and to maintain family connections. In determining reasonable efforts to be made with respect to a child under this section, and in making reasonable efforts, the child’s health and safety must be the paramount concern.

When Reasonable Efforts Are Required

Reasonable efforts must be made to preserve families, reunify families, and maintain family connections:

  • Prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from his or her home
  • To make it possible for a child to return safely to his or her home
  • To place siblings in the same foster care, relative, guardianship, or adoptive placement, unless it is determined that such a joint placement would be contrary to the safety or well-being of any of the siblings
  • In the case of siblings removed from their home who are not jointly placed, to provide for frequent visitation or other ongoing visitation between the siblings, unless it is contrary to the safety or well-being of any of the siblings

If the court determines that continuation of reasonable efforts is inconsistent with the permanency plan for the child, reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

For the purpose of § 27-20-30.1 [concerning continued foster care for older youth], reasonable efforts must be made to meet the child’s needs before a foster care placement for a child remaining in care for continued foster care purposes.

When Reasonable Efforts Are NOT Required


Reasonable efforts are not required if:

  • The parent has subjected the child to aggravated circumstances, in which a parent:
    • Abandons, tortures, chronically abuses, or sexually abuses a child
    • Fails to make substantial efforts to secure treatment for an addiction, mental illness, or other condition for 1 year or one-half a child’s lifetime, whichever time period is less
    • Engages in deviant sexual acts, sexual abuse, etc., in which the victim is a child
    • Commits murder, manslaughter, or negligently causing the death of another, or the attempt to commit such crimes, and the victim is another child of the parent
    • Commits aggravated assault in which the victim is a child of the parent and suffers serious bodily injury
    • Commits assault, aggravated assault, reckless endangerment, or terrorizing in which a child is the victim or intended victim
    • Has been incarcerated under a sentence for which the release date is:
      • In the case of a child age 9 older, after the child’s majority
      • In the case of a child under age 9, after the child is twice the child’s current age
    • Subjects the child to prenatal exposure to chronic or severe use of alcohol or any controlled substance in a manner not lawfully prescribed by a practitioner
    • Allows the child to be present in an environment subjecting the child to exposure to a controlled substance, chemical substance, or drug paraphernalia
  • The parent has had parental rights to another child terminated involuntarily.

 

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

A parent or a guardian of a minor, by a properly executed power of attorney, may delegate to another person, for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child, except the power to consent to marriage or adoption of a minor ward.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

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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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10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

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

8th Circuit

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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.

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

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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

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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)

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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).

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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

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US Supreme Court

CPS Statutes

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

 

 

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