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

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

Oklahoma

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: ‘In the presence of a child’ means in the physical presence of a child or having knowledge that a child is present and may see or hear an act of domestic violence. For the purposes of this section, a ‘child’ may be any child whether or not related to the victim or the defendant.

Consequences

Any person convicted of domestic abuse that was committed in the presence of a child shall be punished by:

  • Imprisonment in the county jail for no less than 6 months or more than 1 year, a fine not exceeding $5,000, or by both
  • For second or subsequent convictions, imprisonment in the custody of the Department of Corrections for no less than 1 year or more than 5 years, a fine not exceeding $7,000, or by both

For every conviction of domestic abuse, the court shall specifically order as a condition of a suspended sentence or probation that a defendant participate in counseling or undergo treatment by an individual licensed practitioner or a domestic abuse treatment program certified by the attorney general to bring about the cessation of domestic abuse.

If the defendant is ordered to participate in a domestic abuse counseling or treatment program, the order shall require the defendant to attend the program for a minimum of 52 weeks, complete the program, and be evaluated before and after attendance of the program by a program counselor or a private counselor.

The defendant may be required to pay all or part of the cost of the counseling or treatment, at the discretion of the court.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means harm, threatened harm, or failure to protect from harm or threatened harm, to the health, safety, or welfare of a child by a person responsible for the child’s health, safety, or welfare, including, but not limited to, nonaccidental physical or mental injury, sexual abuse, or sexual exploitation.

‘Harm or threatened harm to the health or safety of a child’ means any real or threatened physical, mental, or emotional injury or damage to the body or mind that is not accidental, including, but not limited to, sexual abuse, sexual exploitation, neglect, or dependency.

‘Heinous and shocking abuse’ includes, but is not limited to, aggravated physical abuse that results in serious bodily, mental, or emotional injury. ‘Serious bodily injury’ means injury that involves:

  • A substantial risk of death
  • Extreme physical pain
  • Protracted disfigurement
  • A loss or impairment of the function of a body member, organ, or mental faculty
  • An injury to an internal or external organ or the body
  • A bone fracture
  • Sexual abuse or sexual exploitation
  • Chronic abuse, including, but not limited to, physical, emotional, or sexual abuse, or sexual exploitation that is repeated or continuing
  • Torture, including, but not limited to, inflicting, participating in, or assisting in inflicting intense physical or emotional pain upon a child repeatedly over a period of time for the purpose of coercing or terrorizing a child for the purpose of satisfying the craven, cruel, or prurient desires of the perpetrator or another person
  • Any other similar aggravated circumstance
Neglect

‘Neglect’ means any of the following:

  • The failure or omission to provide any of the following:
    • Adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education
    • Medical, dental, or behavioral health care
    • Supervision or appropriate caregivers
    • Special care made necessary by the physical or mental condition of the child
  • The failure or omission to protect a child from exposure to any of the following:
    • The use, possession, sale, or manufacture of illegal drugs
    • Illegal activities
    • Sexual acts or materials that are not age-appropriate
  • Abandonment

‘Heinous and shocking neglect’ includes, but is not limited to:

  • Chronic neglect, including a persistent pattern of family functioning, in which the caregiver has not met or sustained the basic needs of a child that results in harm to the child
  • Neglect that has resulted in a diagnosis for the child of failure to thrive
  • An act or failure to act by a parent that results in the death or near death of a child or sibling, or serious physical or emotional harm, sexual abuse or sexual exploitation, or presents an imminent risk of serious harm to a child
  • Any other similar aggravating circumstance

‘Drug-endangered child’ means a child who is at risk of suffering physical, psychological, or sexual harm as a result of the use, possession, distribution, manufacture, or cultivation of controlled substances, or the attempt of any of these acts, by a person responsible for the health, safety, or welfare of the child. This term includes circumstances in which the substance abuse of the person responsible for the health, safety, or welfare of the child interferes with that person’s ability to parent and provide a safe and nurturing environment for the child. The term also includes newborns who test positive for a controlled dangerous substance, with the exception of those substances administered under the care of a physician.

Sexual Abuse/Exploitation

‘Harm or threatened harm to a child’s health or safety’ includes, but is not limited to, sexual abuse or sexual exploitation.

‘Sexual abuse’ includes, but is not limited to, rape, incest, and lewd or indecent acts or proposals made to a child, as defined by law, by a person responsible for the child’s health, safety, or welfare.

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

  • Allowing, permitting, encouraging, or forcing a child to engage in prostitution, as defined by law, by any person age 18 or older or by a person responsible for the health, safety, or welfare of a child
  • Allowing, permitting, encouraging, or engaging in the lewd, obscene, or pornographic photographing, filming, or depicting of a child in those acts by a person responsible for the child’s health, safety, or welfare

‘Trafficking in persons’ means sex trafficking or severe forms of trafficking in persons as described in title 22, § 7102 of the U. S. Code:

  • ‘Sex trafficking’ means the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.
  • ‘Severe forms of trafficking in persons’ means:
    • Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not reached age 18
    • The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery
Emotional Abuse

‘Harm or threatened harm to a child’s health or safety’ includes, but is not limited to, mental injury.

Abandonment

Citation: Ann. Stat. Tit. 10A, § 1-1-105
‘Abandonment’ means:

  • The willful intent by words, actions, or omissions not to return for a child
  • The failure to maintain a significant parental relationship with a child through visitation or communication in which incidental or token visits or communication are not considered significant
  • The failure to respond to notice of deprived proceedings
Standards for Reporting

Citation: Ann. Stat. Tit. 10A, § 1-2-101
A report is required when any person has reason to believe that a child is a victim of abuse or neglect.

Persons Responsible for the Child

‘Person responsible for a child’s health, safety, or welfare’ includes:

  • A parent, legal guardian, custodian, or foster parent
  • A person age 18 or older with whom the child’s parent cohabits or any other adult residing in the home of the child
  • An agent or employee of a public or private residential home, institution, facility, or day treatment program or an owner, operator, or employee of a child care facility
Exceptions

Nothing contained in this act shall prohibit any parent, teacher, or other person from using ordinary force as a means of discipline, including, but not limited to, spanking, switching, or paddling.

A child is not considered abused or neglected for the sole reason that the parent, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child. Nothing contained in this paragraph shall prevent a court from immediately assuming custody of a child and ordering whatever action may be necessary, including medical treatment, to protect the child’s health or welfare.

No medical treatment of a child with a disability shall be necessary if, in the reasonable medical judgment of the attending physician, such treatment would be futile in saving the life of the child.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic violence’ means the threat of the infliction of physical injury, any act of physical harm or the creation of a reasonable fear thereof, or the intentional infliction of emotional distress by a parent or a present or former member of the household of the child against the child or another member of the household, including coercive control by a parent involving physical, sexual, psychological, emotional, economic, or financial abuse.

‘Stalking’ means the willful course of conduct by a person who repeatedly follows or harasses another person, as defined by title 21, § 1173.

‘Harassment’ means a knowing and willful course or pattern of conduct by a parent directed at another parent that seriously alarms or is a nuisance to the person and that serves no legitimate purpose, including, but not limited to, harassing or obscene telephone calls or conduct that would cause a reasonable person to have a fear of death or bodily injury.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Assault’ is any willful and unlawful attempt or threat of force or violence to inflict corporal hurt upon another person. ‘Battery’ is any willful and unlawful use of force or violence upon the person of another.

Any person who commits any assault and battery against any person listed below shall be guilty of ‘domestic abuse.’

Persons Included in the Definition

‘Domestic abuse’ occurs when an assault or battery is committed against any of the following:

  • A current or former spouse
  • The present spouse of a former spouse
  • Parents
  • A foster parent
  • A child
  • A person otherwise related by blood or marriage
  • A person with whom the defendant is in a dating relationship, as defined by title 22, § 60. 1
  • An individual with whom the defendant has had a child
  • A person who formerly lived in the same household as the defendant
  • A person living in the same household as the defendant

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Data and information maintained in the Department of Human Services information system and related to individual cases shall be confidential and shall be made available only as authorized by State or Federal law.

Persons or Entities Allowed Access to Records

Juvenile court records and Department of Human Services agency records pertaining to a child may be inspected and their contents shall be disclosed without a court order to the following persons upon showing of proper credentials and pursuant to their lawful duties:

  • The court having jurisdiction over the child
  • Employees and officers of the court, including but, not limited to, guardians ad litem and court-appointed special advocates
  • A district attorney, U. S. attorney, or attorney general of this or another State
  • The attorney representing the child
  • Employees of juvenile bureaus and of the Department of Human Services
  • Employees of a law enforcement agency, military enclave, and child protective service of this or another State
  • The Oklahoma Commission on Children and Youth
  • The Office of Juvenile Affairs
  • A federally recognized Indian Tribe in which the child who is the subject of the record is a member or is eligible to become a member of the Tribe
  • The governor
  • Any Federal official of the U. S. Department of Health and Human Services
  • Any member of the Legislature
  • A foster parent with regard to records concerning the social, medical, psychological, or educational needs of a child currently placed with that foster parent or of a child being considered for placement
  • An employee of any State or Federal corrections or law enforcement agency concerning presentence investigations or supervision of a parent of an alleged or adjudicated deprived child, or the legal guardian, custodian, or any other adult member of the child’s home who is responsible for the health, safety, or welfare of the child
  • An employee of a State agency of this or another State concerning the establishment of paternity or the establishment or enforcement of a child support order

The court may disclose to an employee of an out-of-State entity that is licensed to perform adoption home studies in that State whether the prospective adoptive parent has had parental rights to a child terminated or relinquished parental rights to a child in Oklahoma.

Nothing in this section shall be construed as prohibiting the department from disclosing any confidential information as may be necessary to secure appropriate care, treatment, protection, or supervision of a child alleged to be abused or neglected.

Department of Human Services agency records may be inspected, and their contents shall be disclosed without a court order to the following persons upon showing of proper credentials and pursuant to their lawful duties:

  • Postadjudicatory review boards, court-appointed special advocates, and members of the Child Death Review Board
  • Any district court that has ordered a home study by the department in an action for divorce, annulment, custody of a child, or appointment of a legal guardian of a child
  • Members of multidisciplinary teams or multidisciplinary personnel designated by the department, investigating a report of known or suspected child abuse or neglect, or providing services to a child or family that is the subject of the report
  • A physician who has before him or her a child whom he or she reasonably suspects may be abused or neglected
  • Any health-care or mental health professionals involved in the evaluation or treatment of the child or the parents, legal guardian, foster parent, custodian, or other family members
  • Any public or private agency or person authorized by the department to diagnose or provide care, treatment, supervision, or other services to a child who is the subject of a report
  • Any person or agency for research purposes
  • The Oklahoma Health Care Authority
  • A medical examiner when such person is determining the cause of death of a child
When Public Disclosure of Records is Allowed

When a person responsible for a child has been charged with a crime resulting in the death or near death of a child, there shall be a presumption that the best interests of the public is served by public disclosure of certain information concerning:

  • The circumstances of the investigation of the death or near death of the child
  • Any other investigations concerning that child or other children living in the same household

At any time within 7 to 45 days after the person responsible for the child has been criminally charged, the department, district attorney, district court clerk, and judge having jurisdiction over the case shall release certain information to the public as follows:

  • A confirmation by the department as to whether a report has been made concerning the alleged victim or other children living in the same household and whether an investigation has begun
  • A confirmation by the department as to whether previous reports have been made, a summary of those reports, the dates and outcome of any investigations or actions taken by the department in response to a previous report, the specific recommendation made to the district attorney, and any subsequent action taken by the district attorney
  • The dates of any judicial proceedings prior to the death or near death of the child
  • Recommendations submitted by each participant in writing at the judicial proceedings including recommendations made at the hearing related to the custody or placement of a child
  • The rulings of the court

Any disclosure of information shall not identify any complainant or reporter of child abuse or neglect and shall not identify the name of the child victim’s siblings, other children living in the same household, the parent or other person responsible for the child, or any other member of the household, other than the person criminally charged.

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 who, in good faith and exercising due care, reports suspected child abuse or neglect, or who allows access to a child by persons authorized to investigate a report concerning the child, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.

For purposes of any proceeding, civil or criminal, the good faith of any person in making a report pursuant to the provisions of § 1-2-101 of this title shall be presumed.

A child advocacy center that is accredited by the National Children’s Alliance, and the employees thereof, who are acting in good faith and exercising due care shall have immunity from civil liability that may be incurred or imposed through participation in the investigation process and any judicial proceeding resulting from the investigation process.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Every person having reason to believe that a child younger than age 18 is a victim of abuse or neglect shall report the matter promptly to the Department of Human Services.

Content of Reports

This issue is not addressed in the statutes reviewed.

Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Every health-care professional attending the birth of a child who tests positive for alcohol or a controlled dangerous substance shall report the matter promptly to the department.

Whenever the department determines there is a child that meets the definition of a drug-endangered child or a child has been diagnosed with fetal alcohol syndrome, the department shall conduct an investigation of the allegations and shall not limit the evaluation of the circumstances to an assessment.

The term ‘drug-endangered child’ means a child who is at risk of suffering physical, psychological, or sexual harm as a result of the use, possession, distribution, manufacture, or cultivation of controlled substances, or the attempt of any of these acts, by a person responsible for the health, safety, or welfare of the child. This term includes circumstances wherein the substance abuse of the person responsible for the health, safety, or welfare of the child interferes with that person’s ability to parent and provide a safe and nurturing environment for the child. The term also includes newborns who test positive for a controlled dangerous substance, with the exception of those substances administered under the care of a physician.

Agency Receiving the Reports

The Department of Human Services shall establish a statewide centralized hotline for the reporting of child abuse or neglect to the department. Any allegation of abuse or neglect reported in any manner to a county office shall immediately be referred to the hotline by the department.

Initial Screening Decisions

All reports are screened to determine whether allegations meet the definition of child abuse or neglect and are within the scope of a Child Protective Services (CPS) assessment or investigation. If the allegations are not appropriate for CPS, the reporter may be given an explanation why an assessment or investigation will not be conducted and, if appropriate, where a referral may be made to assist the family.

Intervention is limited to current situations as the CPS focus is on identifying and protecting children who are presently at risk or will be at risk if safety measures are not put in place. When a report alleges abuse or neglect that is not recent, information is obtained to determine if there is reason to believe that the child or other children may be presently at risk or in present danger. When information does not indicate a child is presently at risk or in present danger, CPS intervention may not be warranted.

When a report is received that is not appropriate for CPS and services are needed, the worker may make a referral within the Department of Human Services, to outside resources, or both, for emergency food, shelter, medical services, or counseling.

CPS will assign an accepted report for assessment or investigation as follows:

  • An assessment is conducted when a report meets the abuse or neglect guidelines and does not constitute a serious and immediate safety threat to a child.
  • An investigation is conducted when a report meets the abuse or neglect guidelines and constitutes a serious and immediate threat to the safety of a child.
Agency Conducting the Assessment/Investigation

Upon receipt of a report that a child may be abused or neglected, the Department of Human Services shall conduct a safety analysis. If the department determines that a person responsible for the child’s health, safety, or welfare to provide protection for the child does not appear to be responsible for the alleged abuse or neglect, the department shall immediately make a referral, either verbally or in writing, to the appropriate local law enforcement agency for the purpose of conducting a possible criminal investigation.

The investigation of a report of sexual abuse or serious physical abuse or both sexual abuse and serious physical abuse shall be conducted, when appropriate and possible, using a multidisciplinary team approach. Law enforcement and the department shall exchange investigation information.

Assessment/Investigation Procedures

An assessment is a comprehensive review of child safety and an evaluation of family functioning and protective capacities that is conducted in response to a child abuse or neglect referral that does not allege a serious and immediate safety threat to a child.

An investigation is a response to an allegation of abuse or neglect that involves a serious and immediate threat to the safety of the child, making it necessary to determine:

  • The current safety of a child and the risk of subsequent abuse or neglect
  • Whether child abuse or neglect occurred and whether the family needs prevention- and intervention-related services

Any county office of the department receiving a child abuse or neglect report shall promptly respond to the report by initiating an investigation of the report or an assessment of the family in accordance with priority guidelines established by the department. The primary purpose of the investigation or assessment shall be the protection of the child.

The investigation or assessment shall include a visit to the home of the child unless there is reason to believe that there is an extreme safety risk to the child or worker. The visit shall include an interview with and examination of the subject child and any other child in the home. The investigation or assessment may include an interview with the parents of the child or any other person responsible for the health, safety, or welfare of the child.

The investigation or assessment may include a medical, psychological, or psychiatric examination of any child in the home.

At the initial time of contact with a person responsible for the health, safety, or welfare of a child who is the subject of an investigation, the department shall advise the person of the specific complaint or allegation made against the person.

Timeframes for Completing Investigations

Priority guidelines have been established to assist staff in determining how quickly an initial response must be made to a report. This includes:

  • Priority I: A Priority I report indicates that the child is in imminent danger of serious physical injury and must be responded to immediately, but no later than 24 hours after receipt of the report.
  • Priority II: Priority II reports indicate that there is no imminent danger of severe injury, but without intervention and safety measures it is likely that the child will not be safe. Priority II investigations or assessments are initiated from within 2 to 15 calendar days from the date that the report was accepted for investigation or assessment.
Classification of Reports

The results of an investigation may be classified as follows:

  • Substantiated–Court intervention recommended: The investigation has produced some credible evidence of child abuse or neglect, which is of such a nature that the department finds that the health, safety, or welfare of the child is threatened.
  • Substantiated–Services recommended: The investigation has produced some credible evidence of child abuse or neglect, which is of such a nature that the department recommends prevention- and intervention-related services for the parents or persons responsible for the care of the child, but for which initial court intervention is not required.
  • Unsubstantiated–Services recommended: The investigation determines there is insufficient evidence to fully determine whether child abuse or neglect has occurred, but the department determines that the child and the family of the child could benefit from receiving child abuse and neglect prevention- and intervention-related services.
  • Ruled out: A child protective services worker, after an investigation, determines that no child abuse or neglect has occurred.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Mandatory reporters include:

  • All persons
  • Commercial film and photographic print processors or computer technicians
Reporting by Other Persons

Every person who has reason to believe that a child is a victim of abuse or neglect must report.

Institutional Responsibility to Report

The reporting obligations under this section are individual, and no employer, supervisor, or administrator shall interfere with the reporting obligations of any employee or other person or in any manner discriminate or retaliate against the employee or other person who in good faith reports suspected child abuse or neglect, or who provides testimony in any proceeding involving child abuse or neglect.

Standards for Making a Report

A report is required when:

  • Any person has reason to believe that a child under age 18 is a victim of abuse or neglect.
  • A physician, surgeon, or other health-care professional, including doctors of medicine, licensed osteopathic physicians, residents, and interns, attends the birth of a child who tests positive for alcohol or a controlled dangerous substance.
  • A commercial film and photographic print processor or computer technician has knowledge of or observes any film, photograph, videotape, negative, or slide depicting a child engaged in an act of sexual conduct.
Privileged Communications

No privilege shall relieve any person from the requirement to report.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

The Department of Human Services shall electronically record each referral received by the statewide centralized child abuse reporting hotline and establish a secure means of retaining the recordings for 12 months. The recordings shall be confidential and subject to disclosure only if a court orders the disclosure of the referral. The department shall redact any information identifying the reporting party unless otherwise ordered by the court.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

Every physician, surgeon, or other health-care professional, including doctors of medicine, licensed osteopathic physicians, residents, and interns, or any other health-care professional attending the birth of a child who tests positive for alcohol or a controlled dangerous substance shall promptly report the matter to the Department of Human Services.

The term ‘deprived child’ includes a child who is a child in need of special care and treatment because of the child’s physical or mental condition, and the child’s parents, legal guardian, or other custodian is unable or willfully fails to provide such special care and treatment. As used in this paragraph, a child in need of special care and treatment includes, but is not limited to, a child who at birth tests positive for alcohol or a controlled dangerous substance and who, pursuant to a drug or alcohol screen of the child and an assessment of the parent, is determined to be at risk of harm or threatened harm to the health or safety of a child.

‘Drug-endangered child’ means a child who is at risk of suffering physical, psychological, or sexual harm as a result of the use, possession, distribution, manufacture, or cultivation of controlled substances, or the attempt of any of these acts, by a person responsible for the health, safety, or welfare of the child, as defined in paragraph 51 of this section. This term includes circumstances in which the substance abuse of the person responsible for the health, safety, or welfare of the child interferes with that person’s ability to parent and provide a safe and nurturing environment for the child. The term also includes newborns who test positive for a controlled dangerous substance, with the exception of those substances administered under the care of a physician.

The term ‘neglect’ includes the failure or omission to protect a child from exposure to the use, possession, sale, or manufacture of illegal drugs.

Whenever the department determines there is a child that meets the definition of a ‘drug-endangered child,’ as defined in § 1-1-105 of this title, or a child has been diagnosed with fetal alcohol syndrome, the department shall conduct an investigation of the allegations and shall not limit the evaluation of the circumstances to an assessment.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

If, in any proceeding concerning child custody or visitation, the evidence indicates that a child has been subject to abuse or neglect, the court shall appoint an attorney to represent the child for that proceeding and any related proceedings and may appoint a guardian ad litem (GAL) for the child as permitted by law.

The court may appoint an attorney or GAL for the child when an emergency custody hearing is held provided that when a petition is filed alleging the child to be deprived, the court shall appoint a separate attorney for the child, who shall not be a district attorney, regardless of any attempted waiver by the parent, legal guardian, or custodian of the child of the right of the child to be represented by counsel. The child’s attorney shall be independent of and not selected by the district attorney, the child’s parent, legal guardian, or custodian.

The court shall ensure that the child is represented by independent counsel throughout the pendency of the deprived action.

After a petition is filed, the court shall appoint a GAL upon the request of the child or the attorney of the child, and may appoint a GAL on its own motion or upon the request of the Department of Human Services, a licensed child-placing agency, or another party to the action.

A GAL shall not be a district attorney, an employee of the office of the district attorney, the child’s attorney, an employee of the court, an employee of a juvenile bureau, or an employee of any public agency having duties or responsibilities for the child.

The Use of Court-Appointed Special Advocates (CASAs)

A court-appointed special advocate (CASA) is a responsible adult volunteer who has been trained and is supervised by a CASA program recognized by the court, and when appointed by the court, serves as an officer of the court as a GAL.

A CASA program is an organized program, administered by either an independent, not-for-profit corporation; a dependent project of an independent, not-for-profit corporation; or a unit of local government that recruits, screens, trains, assigns, supervises, and supports volunteers to be available for appointment by the court as GALs.

When a CASA program is available to the court to provide a GAL, priority may be given to appointment of the CASA to serve as GAL for the child regardless of whether a GAL has been requested pursuant to the provisions of this subsection.

For purposes of the Oklahoma Children’s Code, a CASA and a GAL shall have the same function except as otherwise provided by law. In like manner, a CASA, except as specifically otherwise provided by law or by the court, shall have the same power, duties, and responsibilities assigned to a GAL by law and shall have such other qualifications, duties, and responsibilities as may be prescribed by rule by the Supreme Court.

Qualifications/Training

On or before December 31, 2009, the Administrative Director of the Courts shall develop a standard operating manual for GALs that shall include, but not be limited to, legal obligations and responsibilities, information concerning child abuse, child development, domestic abuse, sexual abuse, and parent and child behavioral health and management including best practices. After publication of the manual, all GALs shall certify to the court in which he or she is appointed as a GAL that the manual has been read and all provisions contained therein are understood. The GAL shall also certify that he or she agrees to follow the best practices described within the standard operating manual. The Administrative Director of the Courts shall provide public access to the standard operating manual and shall periodically review and revise the manual as deemed necessary.

Specific Duties

The attorney appointed for the child shall make arrangements to meet with the child as soon as possible after receiving notification of the appointment. To the extent that a child is unable to express an interest, either because the child is preverbal, very young, or for any reason incapable of judgment and meaningful communication, the attorney shall substitute his or her judgment for that of the child and formulate and present a position that serves the best interests of the child. Such formulation must be accomplished through the use of objective criteria rather than solely the life experience or instinct of the attorney. The objective criteria shall include, but not be limited to:

  • A determination of the circumstances of the child through a full and efficient investigation
  • An assessment of the child at the time of the determination
  • An examination of all options in light of the permanency plans available to the child
  • Utilization of medical, mental health, and educational professionals; social workers; and other related experts

The attorney shall represent the child and any expressed interests of the child. The attorney shall make such further inquiry as the attorney deems necessary to ascertain the facts, to interview witnesses, examine and cross-examine witnesses, make recommendations to the court, and participate further in the proceedings to the degree appropriate for adequately representing the interests of the child.

The GAL shall be appointed to objectively advocate on behalf of the child and act as an officer of the court to investigate all matters concerning the best interests of the child. A GAL shall have the following responsibilities:

  • Review documents, reports, records, and other information relevant to the case; meet with and observe the child in appropriate settings; and interview parents, foster parents, health-care providers, child protective services workers, and any other person with knowledge relevant to the case
  • Advocate for the best interests of the child by participating in the case, attending any hearings in the matter, and advocating for appropriate services for the child when necessary
  • Monitor the best interests of the child throughout any judicial proceeding
  • Present written reports on the best interests of the child that include conclusions and recommendations and the facts upon which they are based

The GAL shall be given access to court and agency files and all documents, reports, records, and other information relevant to the case, including reports generated by service providers.

How the Representative Is Compensated

If financially capable, the parent, legal guardian, or custodian shall reimburse the Court Fund for the services of a court-appointed attorney for the child. The attorney shall be allowed a reasonable fee for such services as determined by the court.

When an attorney is required to travel to more than one district court location in order to represent a child or children whom the attorney has been court-appointed to represent, the court may in its discretion allow the attorney a reasonable reimbursement for mileage.

A CASA shall serve without compensation.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

An individualized service plan shall be filed with the court within 30 days after a child has been adjudicated to be deprived.

Who May Participate in the Case Planning Process

The treatment and service plan shall be based upon a comprehensive assessment and evaluation of the child and family. The plan shall be developed with the participation of the parent, legal guardian, or custodian of the child; the attorney and guardian ad litem of the child, if any; the child’s Tribe, if applicable; and the child, if appropriate.

Contents of a Case Plan

The individualized service plan shall include, but not be limited to:

  • A history of the child and family
  • Identification of the problems or conditions leading to the deprived child adjudication
  • The changes the parent must make in order for the child to safely remain in or return home
  • Identification of time-limited reunification services to be provided to family members
  • Identification of the specific services to be provided to the child
  • The most recent available health and educational records of the child
  • A schedule of the frequency of services and the means for delivery of those services
  • Performance criteria that will measure the progress of the child and family toward completion of the plan, including timeframes for achieving objectives and addressing identified problems

If the child is placed outside the home, the individualized service plan shall further provide:

  • The sequence and timeframe for services to be provided to facilitate the child’s return home or to another permanent placement
  • A description of the child’s placement and whether the placement is the least restrictive, most familylike setting available and in as close proximity as possible to the home of the child’s family when the case plan is reunification, and how the placement is consistent with the best interests and special needs of the child
  • Any services or resources that were requested by the child or the parent since the date of the child’s placement, and whether those services or resources were provided
  • Efforts to be made by the parent of the child and the department to enable the child to return to his or her home
  • The independent living plan for a child age 16 or older that includes planning for education, employment, health care, medical coverage, transportation, money management, housing, social and recreational skills, and establishing and maintaining connections with the child’s family and community
  • For a child in placement due to the child’s behavioral health or medical health issues, diagnostic and assessment information, specific services relating to meeting the behavioral health and medical care needs of the child, and desired treatment outcomes
  • A plan and schedule for regular and frequent visitation for the child and the child’s parents and siblings, unless the court has determined that visitation, even if supervised, would be harmful to the child
  • A plan for ensuring the educational stability of the child while in out-of-home placement, including:
    • Assurances that the placement of the child considers the appropriateness of the current educational setting and the proximity to the school in which the child was enrolled at the time of placement
    • Where appropriate, an assurance that the department has coordinated with appropriate local educational agencies to ensure that the child remains in the school in which the child was enrolled at the time of placement
    • If remaining in the school in which the child was enrolled at the time of placement is not in the best interests of the child, assurances by the department and the local educational agencies to provide immediate and appropriate enrollment in a new school with all of the educational records of the child provided to the school
  • The permanency plan for the child, the reason for selection of that plan, and a description of the steps being taken by the department to finalize the plan

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

If the child is removed from the custody of the child’s parent, the court or the Department of Human Services, as applicable, shall immediately consider concurrent permanency planning, and, when appropriate, develop a concurrent plan so that permanency may occur at the earliest opportunity. Consideration should be given so that if reunification fails or is delayed, the placement made is the best available placement to provide permanency for the child.

The court shall further establish an initial permanency plan for the child, determine if aggravated circumstances exist pursuant to title 10A, § 1-4-809, and determine whether reunification services are appropriate for the child and the child’s family.

When reunification with a parent or legal guardian is the permanency plan and concurrent planning is indicated, the court shall determine if efforts are being made to place the child in accord with the concurrent permanency plan, including whether appropriate in-State and out-of-State permanency options have been identified and pursued.

Every effort shall be made to place the child with a suitable relative of the child.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

Every case regarding a child alleged or adjudicated to be deprived shall be reviewed by the court at a hearing no later than 6 months from the date of the child’s removal from the home and at least once every 6 months thereafter until permanency is achieved or the court otherwise terminates jurisdiction. A review hearing may be held concurrently with a permanency hearing.

When the Department of Human Services has documented a compelling reason why a petition to terminate parental rights to a child is not in the best interests of the child and that reason is based upon a consideration that the child is presently not capable of functioning in a family setting, the court shall reevaluate the status of the child every 90 days until there is a final determination that the child cannot be placed in a family setting.

The court shall conduct a permanency hearing:

  • No later than 6 months after placing the child in out-of-home placement and every 6 months thereafter
  • Within 30 days after the court determines that reasonable efforts are not required and every 6 months thereafter
Persons Entitled to Attend Hearings

At each permanency hearing, the court may consider testimony of any person who has relevant information about the status of the child or the status of the treatment plan. All parties shall have the opportunity to present evidence and to cross-examine witnesses.

If a foster parent, preadoptive parent, or relative is currently providing care for a child, the department shall give the foster parent, preadoptive parent, or relative notice of a proceeding concerning the child. A foster parent, preadoptive parent, or relative providing care for a child has the right to be heard at the proceeding. Except when allowed to intervene, the foster parent, preadoptive parent, or relative providing care for the child is not considered a party to the juvenile court proceeding solely because of notice and the right to be heard at the proceeding.

Determinations Made at Hearings

At each review hearing the court shall determine:

  • Whether the service plan, services, and placement meet the best interests of the child
  • Whether there is a need for the continued placement of the child
  • Whether the current permanency plan for the child remains appropriate
  • Whether visitation terms need to be modified, including visits with siblings, if separated
  • The timeframe for achieving permanency
  • Whether reasonable efforts have been made to finalize permanency for the child
  • In the case of an Indian child, whether active efforts have been made to provide services and rehabilitative programs, as required by the Indian Child Welfare Act
  • For a child who is age 14 or older, whether services are being provided that will assist the child in making the transition from foster care to a successful adulthood
  • Whether the services being provided are adequate to correct the conditions that led to adjudication
  • Whether reasonable efforts have been made to place siblings together in the same placement or provide for frequent visitation or other ongoing interaction for siblings who are not placed together
  • Whether compliance with the service plan has occurred
  • Whether the department is taking appropriate steps to ensure that the foster family follows the reasonable and prudent parent standard and whether the child has regular opportunities to engage in age-appropriate or developmentally appropriate activities

At the permanency hearing, the court shall determine the continued appropriateness of the permanency plan, whether a change in the plan is needed, the date by which the goal will be achieved, and whether the current placement of the child continues to be suitable for the child. The court also shall, in an age-appropriate manner, ask the child about the proposed permanency plan, and if the child is age 14 or older, the planning for the transition of the child to a successful adulthood.

Permanency Options

Permanency options include:

  • Reunification with the parent, parents, or legal guardian of the child when:
    • Reunification can be expected to occur within an established timeframe that is consistent with the developmental needs of the child.
    • The health and safety of the child can be adequately safeguarded if the child is returned home.
  • Placement for adoption after the rights of the parents have been terminated or after a petition has been filed to terminate parental rights
  • Placement with a person who will be the permanent guardian of the child and is able to adequately and appropriately safeguard the health, safety, and welfare of the child
  • Placement in the legal custody of the department under a planned alternative permanent placement, provided the child is age 16 or older and there are compelling reasons documented by the department include the intensive, ongoing and, as of the date of the hearing, unsuccessful efforts made to:
    • Return the child home
    • Place the child with a fit and willing relative (including adult siblings), a legal guardian, or an adoptive parent
    • Find biological family members for the child utilizing search technology, including social media

 

Determining the Best Interests of the Child

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Current Through March 2016

It is the intent of the legislature that the Oklahoma Children’s Code provides the foundation and process for State intervention into the parent-child relationship whenever the circumstances of a family threaten the safety of a child and to properly balance the interests of the parties stated herein. To this end, it is the purpose of the laws relating to children alleged or found to be deprived to:

  • Intervene in the family only when necessary to protect a child from harm or threatened harm
  • Provide expeditious and timely judicial and agency procedures for the protection of the child
  • Preserve, unify, and strengthen the family ties of the child whenever possible when in the best interests of the child to do so
  • Recognize that the right to family integrity, preservation, or reunification is limited by the right of the child to be protected from abuse and neglect
  • Make reasonable efforts to prevent or eliminate the need for the removal of a child from the home and make reasonable efforts to return the child to the home, unless otherwise prescribed by the Oklahoma Children’s Code
  • Recognize that permanency is in the best interests of the child
  • Ensure that when family rehabilitation and reunification are not possible, the child will be placed in an adoptive home or other permanent living arrangement in a timely fashion
  • Secure for each child the permanency, care, education, and guidance as will best serve the spiritual, emotional, mental, and physical health, safety, and welfare of the child

For the purposes of the Oklahoma Children’s Code, the legislature recognizes that:

  • Parents have a natural, legal, and moral right, as well as a duty, to care for and support their children, and such rights are protected by State and Federal laws as well as the Constitution. To that end, it is presumed that the best interests of a child are ordinarily served by leaving the child in the custody of the parents, who are expected to have the strongest bond of love and affection and to be best able to provide a child those needed qualities that make a child’s life safe and secure. Nevertheless, this presumption may be rebutted where there is evidence of abuse and neglect or threat of harm.
  • A child has a right to be raised by the mother and father of the child as well as a right to be raised free from physical and emotional abuse or neglect. When it is necessary to remove a child from a parent, the child is entitled to a permanent home and to be placed in the least restrictive environment to meet the needs of the child.
  • Because the State has an interest in its present and future citizens as well as a duty to protect those who, because of age, are unable to protect themselves, it is the policy of this State to provide for the protection of children who have been abused or neglected and who may be further threatened by the conduct of persons responsible for the health, safety, and welfare of such children. To this end, where family circumstances threaten the safety of a child, the State’s interest in the welfare of the child takes precedence over the natural right and authority of the parent to the extent that it is necessary to protect the child and assure that the best interests of the child are met.

Whenever it is necessary for a child to be placed outside the home pursuant to the Oklahoma Children’s Code, it is the intent of the legislature that:

  • Each child shall be assured the care, guidance, and supervision in a permanent home or foster home that will serve the best interests of the child including, but not limited to, the development of the moral, emotional, spiritual, mental, social, educational, and physical well-being of the child.
  • When a child is placed in foster care, the foster parent shall be allowed to consider the child as part of the family.
  • Whenever possible, siblings shall be placed together, and when it is not possible, efforts shall be made to preserve the relationships through visitation and other methods of communication.
  • Permanent placement is achieved as soon as possible.

A foster parent or group home where a child is placed has a recognizable interest in the familial relationship that the foster parent or group home establishes with a foster child and shall therefore be considered an essential participant with regard to decisions related to the care, supervision, guidance, rearing, and other foster care services to the child.

It is the intent of the legislature that the paramount consideration in all proceedings within the Oklahoma Children’s Code is the best interests of the child.

 

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 rights of a parent to a child based upon the following legal grounds:

  • The parent has abandoned the child.
  • The child is an abandoned infant.
  • The parent has voluntarily placed the child in out-of-home care, has not complied with the placement agreement, and has not demonstrated a firm intention to resume physical custody of the child.
  • The parent has failed to correct the condition that led to the deprived adjudication of the child, and the parent has been given at least 3 months to correct the condition.
  • The rights of the parent to another child have been terminated, and the conditions that led to the prior termination have not been corrected.
  • A parent who does not have custody of the child has, for at least 6 out of the 12 immediately preceding months, willfully failed or refused to contribute to the support of the child as specified by court order or according to the financial ability of the parent to pay.
  • The parent has been convicted of any of the following acts:
    • Permitting a child to participate in pornography
    • Rape or lewd molestation of a child under age 16
    • Child abuse or neglect or enabling child abuse or neglect
    • Causing the death of a child or a sibling of the child as a result of the physical or sexual abuse or chronic abuse or neglect
    • Murder or voluntary manslaughter of any child or aiding or abetting, attempting, conspiring, or soliciting to commit murder of any child
    • Felony assault resulting in serious bodily injury to the child or another child of the parents
    • Murder or voluntary manslaughter of the child’s parent or aiding or abetting, attempting, conspiring, or soliciting to commit murder of the child’s parent
  • The parent has abused or neglected the child or a sibling of the child or failed to protect the child or a sibling of the child from abuse or neglect that is heinous or shocking.
  • The parent has previously abused or neglected the child or a sibling of the child or failed to protect the child or a sibling of the child from abuse or neglect.
  • The child was conceived as a result of rape perpetrated by the parent whose rights are sought to be terminated.
  • The parent is incarcerated, and the continuation of parental rights would result in harm to the child based on consideration of the following factors, among others:
    • The duration of incarceration
    • The parent’s history of criminal behavior, including crimes against children
    • The age of the child and the current relationship between the parent and the child
  • The parent has a diagnosed cognitive disorder, extreme physical incapacity, or a medical condition, including behavioral health, that renders the parent incapable of adequately and appropriately exercising parental duties and responsibilities within a reasonable time considering the age of the child.
  • The condition that led to the deprived adjudication has been the subject of a previous deprived adjudication of this child or a sibling of this child, and the parent has been given an opportunity to correct the conditions that led to the determination of the initial deprived child.
Circumstances That Are Exceptions to Termination of Parental Rights

The incarceration of a parent shall not in and of itself be sufficient to deprive a parent of parental rights.

A finding that a parent has a diagnosed cognitive disorder, extreme physical incapacity, or a medical condition, including behavioral health or substance dependency, shall not in and of itself deprive the parent of parental rights.

Circumstances Allowing Reinstatement of Parental Rights

A child may request the court to reinstate the previously terminated parental rights of his or her parent under the following circumstances:

  • The child was previously found to be a deprived child.
  • The parent’s rights were terminated in a proceeding under Title 10A.
  • The child has not achieved his or her permanency plan within 3 years of a final order of termination.
  • The child is at least age 15 at the time the application is filed.

If, after a preliminary hearing to consider the parent’s apparent fitness and interest in reinstatement of parental rights, the court finds by a preponderance of the evidence that the best interests of the child may be served by reinstatement of parental rights, the court shall order that a hearing on the merits of the motion be held.

The court shall conditionally grant the application if it finds by clear and convincing evidence that the child has not and is not likely to imminently achieve his or her permanency plan and that reinstatement of parental rights is in the child’s best interests. In determining whether reinstatement is in the child’s best interests, the court shall consider, but is not limited to, the following:

  • Whether the parent whose rights are to be reinstated is a fit parent and has remedied the conditions as provided in the record of the prior termination proceedings and prior termination order
  • The age and maturity of the child, and the ability of the child to express his or her preference
  • Whether the reinstatement of parental rights will present a risk to the health, safety, or welfare of the child
  • Other material changes in circumstances, if any, that may have occurred that warrant the granting of the application

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘kinship care’ means full-time care of a child by a kinship relation. ‘Kinship guardianship’ means a permanent guardianship as defined in this section. ‘Kinship relation’ or ‘kinship relationship’ means relatives, stepparents, or other responsible adults who have a bond or tie with a child and/or to whom has been ascribed a family relationship role with the child’s parents or the child. In cases in which the Indian Child Welfare Act applies, the definitions contained in 25 U.S.C., § 1903 shall control.

The term ‘permanent custody’ means the court-ordered custody of an adjudicated deprived child when a parent-child relationship no longer exists due to termination of parental rights or due to the death of a parent or parents. ‘Permanent guardianship’ means a judicially created relationship between a child, a kinship relation of the child, or other adult established pursuant to the provisions of § 1-4-709 of this title.

The term ‘relative’ means a grandparent, great-grandparent, brother or sister of whole or half blood, aunt, uncle, or any other person related to the child.

Purpose of Guardianship

The court may establish a permanent guardianship between a child and a relative or other adult if the guardianship is in the child’s best interests and all of the following conditions are substantially satisfied:

  • The child has been adjudicated to be a deprived child.
  • The parent has:
    • Consented to the guardianship
    • Had his or her parental rights terminated
    • Failed to substantially correct the conditions that led to the adjudication of the child
    • Been adjudicated as incompetent or incapacitated by a court
    • Abandoned the child
    • Not been identified or located despite reasonably diligent efforts to ascertain his or her whereabouts
    • Died
  • The child consents to the guardianship if the court finds the child to be of sufficient intelligence, understanding, and experience to provide consent.
  • Termination of the parent’s rights is either not legally possible or not in the best interests of the child or adoption is not the permanency plan for the child.
  • The child and the prospective guardian do not require protective supervision or preventive services to ensure the stability of the guardianship.
  • The prospective guardian is committed to providing for the child until the child reaches the age of majority and to preparing the child for adulthood and independence.
  • The prospective guardian agrees that he or she will not return the child to the care of the person from whom the child was removed or allow visitation without the approval of the court.
  • The child has been residing or placed with the proposed guardian for at least the 6 preceding months, or the permanent guardian is a relative with whom the child has a relationship.

In proceedings for permanent guardianship, the court shall give primary consideration to the physical and behavioral health needs of the child.

A Guardian’s Rights and Responsibilities

Unless otherwise set forth in the final order of permanent guardianship, a permanent guardian is vested with all of the rights and responsibilities as set forth in Title 30 of the Oklahoma Statutes relating to the powers and duties of a guardian of a minor, other than those rights and responsibilities retained by the child’s parent, if any, that are set forth in the decree of permanent guardianship.

Qualifying the Guardian

When the child is in the custody of the Department of Human Services, the department shall complete an assessment of the proposed guardian’s home and provide a report to the court regarding the suitability of the proposed guardian and whether guardianship is in the best interests of the child. The department shall develop rules in furtherance of the duties imposed by this subsection. However, the prospective guardian shall be responsible for obtaining the home assessment if the child is not in the custody of the department.

The findings of the home assessment shall be set forth in a written report provided to the court, the district attorney, the child, and the guardian ad litem, if any, before the hearing. The court may require additional information as necessary to make an appropriate decision regarding the permanent guardianship.

Before issuing an order of permanent guardianship, the court shall find, by clear and convincing evidence, that the proposed permanent guardian:

  • Is emotionally, mentally, physically, and financially suitable to become the permanent guardian
  • Has expressly committed to remain the permanent guardian for the duration of the child’s minority
  • Has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian
Procedures for Establishing Guardianship

A motion for permanent guardianship shall be filed by the district attorney or child’s attorney. The motion shall include the following:

  • The name and date of birth of the child
  • The facts and circumstances supporting the grounds for permanent guardianship
  • The name and address of the prospective guardian and a statement that the prospective guardian agrees to accept the duties and responsibilities of guardianship
  • The relationship of the child to the prospective guardian
  • That the prospective guardian understands that the guardianship is intended to be permanent and that the person will be responsible as the guardian until the child reaches the age of majority
  • Whether the child has resided with the prospective guardian prior to the motion being filed, and, if so, the length of time and the circumstances surrounding the child’s stay
  • Whether there exists a loving, emotional tie between the child and the prospective guardian

Notice of the hearing shall be served on the parties, the department, and the guardian ad litem of the child, if any. Notice shall also be sent to the Tribe of an Indian child. Notice shall not be required to the parent whose rights have been terminated.

Before issuing an order of permanent guardianship, the court shall find by clear and convincing evidence all of the following:

  • The parent is unfit or unavailable to provide adequate care for the child.
  • Termination of the rights of the parent is either not legally possible or not in the best interests of the child, or adoption is not the permanency plan for the child.
  • The child has resided with the permanent guardian for at least 6 months, or the permanent guardian is a relative with whom the child has a relationship.
  • A permanent guardianship is in the best interests of the child.
Contents of a Guardianship Order

A decree of permanent guardianship divests the parents of legal custody or guardianship of the child, but is not a termination of parental rights.

Upon finding that grounds exist for a permanent guardianship, the court may also order visitation with the parent, siblings, or other relatives of the child if such contact would be in the child’s best interests, as well as any other provision necessary to provide for the child’s continuing safety and well-being. The court shall order the parents to contribute to the support of the child pursuant to child-support guidelines as provided for in title 43, §§ 118 and 119.

An order appointing a permanent guardian shall:

  • Require that the placement be reviewed within 1 year after transfer and may require the permanent guardian to submit any records or reports the court deems necessary for purposes of that review
  • Not require the department to supervise the placement during that period of time
  • Not require periodic reviews by the court thereafter if the parties agree with the assent of the court that the reviews are not necessary to serve the best interests of the child, unless periodic reviews are otherwise required by the court

Unless periodic reviews are required, the court may close the case, provided the order of permanent guardianship shall remain in full force and effect, subject to the provisions of this Code.

Modification/Revocation of Guardianship

A motion for modification or termination of a permanent guardianship may be filed when there has been a substantial change of material circumstances including, but not limited to, the following:

  • The parent of the child is presently able and willing to properly care for the child.
  • The permanent guardian of the child is unable to properly care for the child.
  • The child has been abused or neglected while in the care of the permanent guardian.
  • The permanent guardian has died.

The court may modify or terminate the order granting permanent guardianship upon a finding by clear and convincing evidence that there has been a substantial change in material circumstances and that a modification or termination of the permanent guardianship is in the child’s best interests.

The court shall appoint a guardian ad litem for the child in any proceeding for modification or termination of a permanent guardianship.

When the termination of a permanent guardianship is granted for reason of the guardian’s abuse, neglect, death, or inability to care for the child, the court shall order the child returned to the legal custody of the department pending further hearing. The department shall develop a new permanency plan on behalf of the child, which shall be presented to the court within 30 days of the date that the permanent guardianship is terminated.

Unless the parental rights of the child’s parent or parents have been terminated, they shall be notified that the legal guardianship has been modified or terminated and shall be entitled to participate in the new permanency planning hearing where the court shall order a new permanency plan appropriate to meet the needs of the child.

Eligibility for Guardianship Subsidy

When a child in the custody of the department is placed in a paid kinship foster home with a relative who resides in Oklahoma and meets the specified degree of relationship, supported permanency through the Temporary Assistance for Needy Families program may be explored, subject to the availability of funds. Supported permanency is appropriate when:

  • The child is age 12 or older or has a sibling age 12 or older who resides in the same relative foster home. The department may, for good cause, approve supported permanency for a child age 8 through 11 and his or her sibling(s) when the child has no older eligible sibling.
  • Reunification and adoption have been ruled out.
  • The relative has completed all requirements to be an approved foster home.
  • The child is currently residing with the relative in Oklahoma and has been for 4 of the previous 6 months.
  • The relative is willing to assume legal responsibility for the child.

Title IV-E Subsidized Guardianship assistance is available to any child who meets the following eligibility requirements:

  • The child has been removed from his or her home through a voluntary placement agreement or as a court order and is title IV-E eligible for at least 6 consecutive months.
  • The child is a sibling to an eligible child and is residing or planning to reside in the same placement.
  • Reunification and adoption have been ruled out.
  • The relative has completed all requirements to be an approved foster home.
  • The child is currently residing with the relative and has been for 6 consecutive months.
  • The relative is willing to assume legal responsibility for the child and has a strong commitment to permanently care for the child.
  • The child who is age 14 or older has been consulted regarding the kinship guardianship arrangement.
  • The child demonstrates a strong attachment to the prospective relative guardian.
Links to Agency Policies

Oklahoma Department of Human Services:

 

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 Oklahoma Legislature recognizes that children who have been abused, who are dependent or neglected, or whose parents, for whatever reason, may be unable or unwilling to provide care for their children, are best served when they can be cared for by grandparents or other suitable relatives instead of placing those children in foster care.

When awarding custody or determining the placement of a child, a preference shall be given to relatives and persons who have a kinship relationship with the child. The department shall make diligent efforts to place the child with such persons and shall report to the court the efforts made to secure that placement. In cases where the Indian Child Welfare Act applies, the placement preferences of the act shall be followed.

The department shall consider placement with a relative without delay and shall identify relatives of the child and notify them of the need for temporary placement and the possibility of the need for a permanent out-of-home placement of the child. The relative search shall be reasonable and comprehensive in scope and may continue until a fit and willing relative is identified.

The provisions of this section shall apply to all custody or placement proceedings that concern a child alleged or adjudicated to be deprived, including, but not limited to, guardianship and adoption proceedings.

Requirements for Placement with Relatives

In determining the appropriate custodian or placement for a child, the court and the department shall consider, but not be limited to, the following factors:

  • The ability of the person to provide safety for the child, including a willingness to cooperate with any restrictions placed on contact with the child
  • The ability of the person to support efforts to implement the permanent plan for the child
  • The ability of the person to meet the child’s physical, emotional, and educational needs, including the child’s need to continue in the same school
  • The person who has the closest existing personal relationship with the child if more than one person requests placement of the child
  • The ability of the person to provide a placement for the child’s sibling who also is in need of placement
  • The wishes of the parent, the relative, and the child, if appropriate
  • The ability of the person to care for the child as long as is necessary and to provide a permanent home, if necessary
  • The best interests of the child

The relatives shall be notified of the need to keep the department informed of their current address in order to receive notice when a permanent out-of-home placement is being sought for the child. A relative who fails to provide a current address may forfeit the right to be considered for the child’s permanent placement.

A decision by a relative not to participate in the child’s placement planning at the beginning of the case may affect whether that relative will be considered for permanent placement of the child if the child cannot be returned safely to the home of the child’s parents.

Following an initial placement with a relative, whenever a new placement of the child is made, consideration for placement shall again be given to approved relatives who will fulfill the case plan requirements of the child. The department shall consider whether the relative has established and maintained a relationship with the child.

Requirements for Placement of Siblings

When two or more children are siblings, every reasonable attempt shall be made to place the siblings in the same home. In making a permanent placement, siblings shall be placed in the same permanent home or, if the siblings are separated, shall be allowed contact or visits with each other. However, the best interests of each sibling shall be the standard for determining the appropriate custodian or placement as well as the contact and visiting rights with the other siblings.

Relatives Who May Adopt

The term ‘relative’ means a grandparent, great-grandparent, brother or sister of whole-blood or half-blood, aunt, uncle, or any other person related to the child.

Requirements for Adoption by Relatives

A preplacement home study is not required if a parent or guardian places the child directly with a relative for purposes of adoption, but a home study of the relative is required during the pendency of a proceeding for adoption.

 

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

To better understand this issue and to view it across States, download the PDF (539 KB) of this publication.

Current Through March 2016

What Are Reasonable Efforts

The court shall determine whether the nature and extent of services being provided to the child and the child’s parent(s) are adequate to ensure the safety of the child and to protect the child from further physical, mental, or emotional harm, or to correct the conditions that led to the adjudication.

When Reasonable Efforts Are Required

Reasonable efforts are required:

  • To prevent the removal of the child from the child’s home
  • To provide for the safe return of the child to the child’s own home
  • To place the child in a timely manner in accordance with the permanency plan when the court has determined that reasonable efforts to reunite the child with his or her family are not required
  • To place siblings, when they have been removed from home, together in the same foster care, guardianship, or adoptive placement
  • To provide for frequent visitation or other ongoing interaction in the case of siblings who have been removed and who are not placed together
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if the court finds, based upon a preponderance of the evidence, that:

  • The parent or legal guardian of the child who is an infant age 12 months or younger has abandoned the child.
  • The parent or legal guardian of the child has:
    • Committed murder or manslaughter of any child
    • Aided or abetted, attempted, conspired, or solicited to commit the murder or manslaughter of any child
    • Committed a felony assault upon any child that resulted in serious bodily injury
    • Subjected any child to aggravated circumstances, including, but not limited to, heinous and shocking abuse or neglect
  • The parental rights of a parent to the child’s sibling have been terminated involuntarily.
  • The parent has been found by a court of competent jurisdiction to have committed sexual abuse against the child or another child of the parent.
  • The parent is required to register with a sex offender registry pursuant to § 113(a) of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. § 16913(a)).

 

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

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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