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

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

Oregon

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: An assault is witnessed by a child:

  • When it is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim
  • If it is seen or directly perceived in any other manner by the child
Consequences

Assault in the fourth degree is a Class A misdemeanor, except when it is witnessed by the person’s or the victim’s minor child, when it is a Class C felony.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means:

  • An assault on a child and physical injury to a child that has been caused by other than accidental means, including injury that appears to be inconsistent with the explanation given of the injury
  • Threatened harm to a child that means subjecting a child to a substantial risk of harm to the child’s health or welfare
  • Buying or selling a person under age 18, as described in § 163.537
  • Permitting a person under age 18 to enter or remain in or upon premises where methamphetamine is being manufactured
  • Unlawful exposure to a controlled substance that subjects a child to a substantial risk of harm to his or her health or safety
Neglect

The term ‘abuse’ includes 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.

Sexual Abuse/Exploitation

The term ‘abuse’ includes:

  • Rape of a child, which includes but is not limited to, rape, sodomy, unlawful sexual penetration, and incest
  • Sexual abuse as described in chapter 163
  • Sexual exploitation, including, but not limited to:
    • Contributing to the sexual delinquency of a minor
    • Conduct that allows, employs, authorizes, permits, induces, or encourages a child to engage in the performing for people to observe, or the photographing, filming, tape recording, or other exhibition that, in whole or in part, depicts sexual conduct or contact, sexual abuse involving a child, or rape of a child
    • Allowing, permitting, encouraging, or hiring a child to engage in prostitution or a commercial sex act, to purchase sex with a minor, or to patronize a prostitute
Emotional Abuse

The term ‘abuse’ includes any mental injury to a child that 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.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Rev. Stat. § 419B.010
A report is required when a public or private official has reasonable cause to believe that any child with whom the official comes in contact has suffered abuse or that any person with whom the official comes in contact has abused a child.

Persons Responsible for the Child

‘Responsible person’ may include any person.

Exceptions

Abuse does not include reasonable exercise of parental discipline.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the occurrence of one or more of the following acts between family or household members:

  • Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury
  • Intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury
  • Causing another to engage in involuntary sexual relations by force or threat of force

‘Family violence’ means the physical injury, sexual abuse, or forced imprisonment, or threat thereof, of a person by another who is related by blood, marriage, or intimate cohabitation at the present, or has been related at some time in the past, to the extent that the person’s health or welfare is harmed or threatened thereby.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Abuse’ means:

  • Attempting to cause or intentionally, knowingly, or recklessly causing physical injury
  • Intentionally, knowingly, or recklessly placing another in fear of imminent serious physical injury
  • Committing sexual abuse in any degree, as defined in §§ 163.415, 163.425, and 163.427

‘Domestic violence’ means abuse between family or household members.

Persons Included in the Definition

In civil law: ‘Family or household members’ means any of the following:

  • Spouses or former spouses
  • Adult persons related by blood, marriage, or adoption
  • Persons who are cohabiting or who have cohabited
  • Persons who have been involved in a sexually intimate relationship with each other within 2 years immediately preceding the filing by one of them of a petition under § 107.710
  • Unmarried parents of a child

In criminal law: ‘Family or household members’ means any of the following:

  • Spouses or former spouses
  • Adult persons related by blood or marriage
  • Persons cohabiting with each other
  • Persons who have cohabited or who have been involved in a sexually intimate relationship
  • Unmarried parents of a minor child

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Reports and records compiled under [the reporting laws] are confidential and may not be disclosed except as provided in this section.

Persons or Entities Allowed Access to Records

The Department of Human Services shall make records available to the persons and entities listed below:

  • Any law enforcement agency or a child abuse registry in any other State for the purpose of subsequent investigation of child abuse
  • Any physician regarding any child brought to the physician for examination, care, or treatment
  • Attorneys of record for the child or child’s parent or guardian in any juvenile court proceeding
  • Citizen review boards
  • A court-appointed special advocate in any juvenile court proceeding in which it is alleged that a child has been subjected to child abuse or neglect
  • The Office of Children’s Advocate
  • The Teacher Standards and Practices Commission for investigations involving any child or any student in grade 12 or below
  • Any person, administrative hearings officer, court, agency, organization, or other entity when it is necessary to administer child welfare services; to investigate, prevent, or treat child abuse and neglect; or for research

A law enforcement agency may make reports and records it has compiled available to:

  • Other law enforcement agencies
  • District attorneys, city attorneys with criminal prosecutorial functions, and the attorney general when the law enforcement agency determines that disclosure is necessary for the investigation or enforcement of laws relating to child abuse and neglect
  • The community corrections agency in this State
  • The Department of Corrections or to the State Board of Parole and Post-Prison Supervision
When Public Disclosure of Records is Allowed

The Department of Human Services may disclose the records to any person, upon request to the department, if the reports or records requested regard an incident in which a child died or suffered serious physical injury as the result of abuse. Reports or records disclosed under this paragraph must be disclosed in accordance with §§ 192.410 to 192.505.

Use of Records for Employment Screening

The Child Care Division may access records for certifying, registering, or otherwise regulating child care facilities.

The Child Care Division of the Employment Department may access records for purpose of conducting background checks of contractors, employees, or volunteers of a metropolitan service district 8 who may have unsupervised contact with children and who are required to be enrolled in the Central Background Registry by the metropolitan service district, as required by § 657A.030(8)(g).

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone participating in good faith in making a report of child abuse and who has reasonable grounds for the making thereof shall have immunity from any civil or criminal liability that might otherwise be incurred or imposed with respect to the making or content of such report. Any such participant shall have the same immunity with respect to participating in any judicial proceeding resulting from such report.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A person making a report shall make an oral report, by telephone or otherwise, to:

  • The local office of the Department of Human Services or a designee of the department
  • A law enforcement agency in the county where the person is located
Content of Reports

The report shall contain, if known:

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

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports shall be made to the local office of the Department of Human Services, to the designee of the department, or to a law enforcement agency within the county where the person making the report is located at the time of the contact.

Initial Screening Decisions

A Child Protective Services (CPS) assessment is required if the screener determines that information received constitutes a report of child abuse or neglect, as defined by law, and the information indicates:

  • The alleged perpetrator is a legal parent of the alleged child victim.
  • The alleged perpetrator resides in the alleged child victim’s home.
  • 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.
  • The alleged child abuse occurred in a day care facility, the home of a department-certified foster parent or relative caregiver, or a private child caring agency that is not a Children’s Care Provider (CCP).
Agency Conducting the Assessment/Investigation

If the department or a law enforcement agency receives a report of child abuse, the department or the agency shall immediately cause an investigation to be made to determine the nature and cause of the abuse of the child.

In regulation: A CPS assessment must be completed only by a department employee whose current position is a CPS worker, a CPS supervisor, or an employee who meets the definition of CPS worker and has recent experience completing CPS assessments.

Assessment/Investigation Procedures

Completing a CPS assessment involves the following:

  • Making initial contact within the assigned response time lines, which includes:
    • Face-to-face contact with the alleged victim, his or her siblings, his or her parent or caregiver, and other children and adults living in the home
    • Access to the home environment
    • Determining if there is a safety threat
    • Determining if the child is unsafe
    • Establishing a protective action when the child is unsafe
  • Gathering safety-related information through interviews and observation
  • Determining child vulnerability and explaining the basis for that determination
  • Determining if the parent or caregiver can or cannot and will or will not protect the child and explaining the basis for that determination
  • Determining if there is reasonable cause to believe that child abuse or neglect occurred and explaining the basis for that determination
  • Completing a safety analysis
  • Developing an ongoing safety plan when a child is unsafe
Timeframes for Completing Investigations

If an assessment is required, the screener must determine the response timeframe:

  • Within 24 hours if there is an immediate threat to safety
  • Within 5 days if the threat to safety is not immediate
Classification of Reports

Following the completion of the CPS assessment, the worker must determine whether there is reasonable cause to believe that child abuse occurred. The possible determinations are:

  • Founded: There is reasonable cause to believe that abuse occurred.
  • Unfounded: No evidence of child abuse was identified or disclosed.
  • Unable to determine: There was insufficient data to conclude whether there was reasonable cause to believe that abuse occurred.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

A public or private official is mandated to report. Public or private officials include:

  • Physicians, physician assistants, naturopathic physicians, interns, residents, optometrists, chiropractors, dentists, nurses, nurse practitioners, pharmacists, nurse’s aides, home health aides, or employees of in-home health services
  • School employees, including employees of higher education institutions (such as community colleges and public and private universities)
  • Employees of the Department of Human Services, Oregon Health Authority, Early Learning Division, Youth Development Council, Office of Child Care, the Oregon Youth Authority, a local health department, a community mental health program, a community developmental disabilities program, a county juvenile department, a licensed child-caring agency, or an alcohol and drug treatment program
  • Peace officers
  • Members of the clergy
  • Psychologists, social workers, professional counselors, marriage and family therapists
  • Certified foster care or child care providers
  • Attorneys or court-appointed special advocates
  • Firefighters or emergency medical technicians
  • Members of the Legislative Assembly
  • Physical, speech, or occupational therapists
  • Audiologists or speech-language pathologists
  • Employees of the Teacher Standards and Practices Commission directly involved in investigations or discipline by the commission
  • Operators of preschool or school-age recorded programs
  • Employees or a private agency or organization facilitating the provision of respite services for parents pursuant to a properly executed power of attorney
  • Employees of organizations providing child-related services or activities, including youth groups or centers, scout groups or camps, or summer or day camps
  • Coaches, assistant coaches, or trainers of athletes, if compensated and if the athlete is a child
  • Personal support and home care workers
Reporting by Other Persons

Any person may voluntarily make a report.

Institutional Responsibility to Report

The duty to report under this section is personal to the public or private official alone, regardless of whether the official is employed by, a volunteer of, or a representative or agent for any type of entity or organization that employs persons or uses persons as volunteers who are public or private officials in its operations.

The duty to report under this section exists regardless of whether the entity or organization that employs the public or private official or uses the official as a volunteer has its own procedures or policies for reporting abuse internally within the entity or organization.

Standards for Making a Report

A report is required when any public or private official has reasonable cause to believe that any child with whom the official comes in contact has suffered abuse.

The duty to report under this section is personal to the public or private official alone, regardless of whether the official is employed by, a volunteer of, or a representative or agent for any type of entity or organization that employs persons or uses persons as volunteers who are public or private officials in its operations.

The duty to report under this section exists regardless of whether the entity or organization that employs the public or private official or uses the official as a volunteer has its own procedures or policies for reporting abuse internally within the entity or organization.

Privileged Communications

A psychiatrist, psychologist, member of the clergy, or attorney shall not be required to report if such communication is privileged under law. An attorney is not required to make a report of information communicated to the attorney in the course of representing a client if disclosure of the information would be detrimental to the client.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

The name, address, and other identifying information about the person who made the report may not be disclosed.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

A person having custody or control of a child under age 16 commits the crime of child neglect in the first degree if the person knowingly leaves the child or allows the child to stay:

  • In a vehicle where controlled substances are being criminally delivered or manufactured
  • In or upon premises and in the immediate proximity where controlled substances are criminally delivered, manufactured for consideration or profit, or where a chemical reaction involving one or more precursor substances:
    • Is occurring as part of unlawfully manufacturing a controlled substance or grinding, soaking, or otherwise breaking down a precursor substance for the unlawful manufacture of a controlled substance
    • Has occurred as part of unlawfully manufacturing a controlled substance or grinding, soaking, or otherwise breaking down a precursor substance for the unlawful manufacture of a controlled substance and the premises have not been certified as fit for use under § 453.885
  • In or upon premises that have been determined to be not fit for use under §§ 453.855 to 453.912

As used in this subsection, ‘vehicle’ and ‘premises’ do not include public places, as defined in § 161.015.

Child neglect in the first degree is a Class B felony.

This section does not apply if the controlled substance is marijuana and is delivered for no consideration.

The Oregon Criminal Justice Commission shall classify child neglect in the first degree as crime category 6 of the sentencing guidelines grid of the commission if the controlled substance being delivered or manufactured is methamphetamine.

‘Abuse’ means:

  • Permitting a person younger than age 18 to enter or remain in or upon premises where methamphetamines are being manufactured
  • Unlawful exposure to a controlled substance that subjects a child to a substantial risk of harm to the child’s health or safety

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

For the purposes of a Child Abuse Prevention and Treatment Act (42 U.S.C. § 5101, et seq.) grant to this State under P.L. 93-247, or any related State or Federal legislation, a court-appointed special advocate (CASA) or other person appointed pursuant to this section is deemed a guardian ad litem to represent the interests of the child or ward in proceedings before the court.

If the child, parent, or guardian requests counsel for the child but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the child at State expense if the child is determined to be financially eligible under the policies, procedures, standards, and guidelines of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the child in a case filed pursuant to § 419B.100. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards, and guidelines of the Public Defense Services Commission.

The Use of Court-Appointed Special Advocates (CASAs)

In every case under chapter 419B, the court shall appoint a court-appointed special advocate (CASA). The CASA is deemed a party in these proceedings and may be represented by counsel; file pleadings and request hearings; and subpoena, examine, and cross-examine witnesses.

If a juvenile court does not have a sufficient number of qualified CASAs available to it, the court may, in fulfillment of the requirements of this section, appoint a juvenile department employee or other suitable person to represent the child or ward’s interest in court pursuant to § 419A.012 or 419B.195.

Upon presentation of the order of appointment by the CASA, any agency, hospital, school organization, division, office or department of the State, doctor, nurse or other health-care provider, psychologist, psychiatrist, police department, or mental health clinic shall permit the CASA to inspect and copy, and may consult with the CASA regarding, any records relating to the child or ward involved in the case, without the consent of the child, ward, or parents.

Qualifications/Training

This issue is not addressed in the statutes reviewed.

Specific Duties

Subject to the direction of the court, the duties of the CASA are to:

  • Investigate all relevant information about the case
  • Advocate for the child or ward, ensuring that all relevant facts are brought before the court
  • Facilitate and negotiate to ensure that the court, the Department of Human Services, if applicable, and the child or ward’s attorney, if any, fulfill their obligations to the child or ward in a timely fashion
  • Monitor all court orders to ensure compliance and to bring to the court’s attention any change in circumstances that may require a modification of an order of the court
How the Representative Is Compensated

If the CASA is represented by counsel, counsel shall be paid from funds in the Court Appointed Special Advocate Fund established under § 458.584. Counsel representing a CASA may not be paid from moneys in the Public Defense Services Account, the Public Defense Services Commission, or from Judicial Department operating funds.

Whenever the court appoints a CASA or other person to represent the child, it may require a parent, if able, or guardian of the estate, if the estate is able, to pay, in whole or in part, the reasonable costs of CASA services, including reasonable attorney fees.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

The Department of Human Services shall consider the use of a family decision-making meeting in each case in which a child is placed in substitute care for more than 30 days. When the department determines that the use of a family decision-making meeting is appropriate, the meeting shall be held, whenever possible, before the child has been in substitute care for 60 days. If the department elects not to conduct a family decision-making meeting, the reasons for that decision shall be clearly documented in the written service plan of the child developed by the department.

In regulation: The caseworker must develop the case plan within 60 days of a child’s removal from home or within 60 days of the completion of the Child Protective Services (CPS) assessment, in cases where the child remains in the home of a parent or legal guardian.

Who May Participate in the Case Planning Process

If the department determines that the use of a family decision-making meeting is appropriate, the department shall conduct and document reasonable inquiries to promptly locate and notify the parents, grandparents, and any other family member who has had significant, direct contact with the child in the year prior to the substitute care placement.

All family members notified by the department may attend the meeting unless the department determines that the safety of any attendee will be compromised by the attendance of any family member.

The term ‘family member’ includes any person related to the child by blood, marriage, or adoption, including, but not limited to, parents, grandparents, stepparents, aunts, uncles, sisters, brothers, cousins, or great-grandparents. ‘Family member’ also includes a child age 12 or older, or a child younger than age 12 when appropriate.

In regulation: The persons involved with the department in the development of the case plan include the parents or legal guardians unless their participation threatens or places other participants at risk. Other participants may include the child, young adult, adoptive parents, an Indian custodian when applicable, other relatives, persons with significant attachments to the child or young adult, the substitute caregiver, and other professionals when appropriate.

Contents of a Case Plan

If the department conducts a family decision-making meeting, the meeting shall result in the development of a written family plan that may include a primary permanent plan, concurrent permanent plan, placement recommendations, and service recommendations. The family plan or service agreement also shall include:

  • The expectations of the parents of the child and other family members
  • Services the department will provide
  • Timelines for implementation of the plan
  • The benefits of compliance with the plan
  • The consequences of noncompliance with the plan
  • A schedule of subsequent meetings, if appropriate

The department shall incorporate the family plan developed at the family decision-making meeting into the department’s service plan for the child to the extent that the family plan protects the child, builds on family strengths, and is focused on achieving permanency for the child within a reasonable time. If the family plan is not incorporated in the department’s service plan for the child, the department shall document the reasons in the service plan.

In regulation: The case plan must include all of the following information:

  • Family composition
  • Safety threats identified in the CPS assessment
  • The ongoing safety plan
  • The findings of the protective capacity assessment
  • Expected outcomes and actions that each parent is taking to achieve the expected outcomes
  • Services to the child that include:
    • The identified needs and services provided to any child placed in substitute care and the reasons the substitute care placement is the least restrictive placement to meet the child’s needs
    • The child’s health information
    • The child’s education services, education history, high school credits earned by a child older than age 14, and any special educational needs
    • Services to transition the child to independent living in all cases when the child is age 16 or older
  • Services the department will provide including:
    • Case oversight and routine contact with the parents and the child
    • Appropriate and timely referrals to services and service providers suitable to address identified safety threats or strengthen parental protective capacity
    • Appropriate and timely referrals to services and service providers suitable to address the needs of the child
    • Timely preparation of reports to the court or other service providers
    • The date that the progress of the parents in achieving expected outcomes will be reviewed

When the child is in substitute care, the case plan must also include:

  • Current placement information including:
    • The location of the child and the substitute caregiver, except when doing so would jeopardize the safety of the child or substitute caregiver, or the substitute caregiver will not authorize release of the address
    • Documentation that the child is receiving safe and appropriate care in the least restrictive environment able to provide safety and well-being for the child
  • The child’s record of visits with his or her parents and siblings
  • The permanency plan
  • The conditions for return
  • The concurrent permanent plan and the progress the department has made in implementing the concurrent permanent plan

As applicable, the caseworker must also include in the case plan:

  • The goals and activities required for an Indian child under the Indian Child Welfare Act or for a refugee child under the Refugee Act
  • Recommendations of expert evaluations requested by the department whenever the recommendations may impact parental protective capacities or treatment services for the child
  • Diligent efforts to place the child with relatives and with siblings who are also in substitute care, maintain sibling connections, and keep siblings together
  • Orders of the court

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

In making the findings under this section, the court shall consider the efforts made to develop the concurrent case plan, including, but not limited to, identification of appropriate permanent placement options for the child or ward both inside and outside this State and, if adoption is the concurrent case plan, identification and selection of a suitable adoptive placement for the child or ward.

In addition to findings of fact required by this section, the court may order the Department of Human Services to consider additional information in developing the case plan or concurrent case plan.

Except in cases when the plan is something other than to reunify the family, the Department of Human Services shall include in the case plan:

  • Appropriate services to allow the parent the opportunity to adjust the parent’s circumstances, conduct, or conditions to make it possible for the ward to return home safely within a reasonable time
  • A concurrent permanent plan to be implemented if the parent is unable or unwilling to adjust the parent’s circumstances, conduct, or conditions in such a way as to make it possible for the ward to return home safely within a reasonable time

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court shall conduct a permanency hearing:

  • Within 30 days after a judicial finding that the Department of Human Services has determined it will not make reasonable efforts to reunify the family
  • No later than 12 months after the child was placed within the jurisdiction of the court or 14 months after the child was placed in substitute care, whichever is earlier
  • Within 3 months of a change in placement
  • Every 12 months after the initial permanency for as long as the child or ward remains in substitute care
  • If a child has been surrendered for adoption or the parents’ rights have been terminated, within 30 days if the department has not physically placed the child for adoption or initiated adoption proceedings within 6 months after the termination of rights, and every 6 months for as long as the child has not been placed for adoption

In regulation: An administrative review shall be held within 6 months following the first day of placement in care and every 6 months thereafter from the date of the last review.

Persons Entitled to Attend Hearings

The court may order that the child or any other person be present during the hearing. The court shall notify the parties listed below and other interested parties of the hearing, such as:

  • The department
  • An agency directly responsible for the care or placement of the child
  • The parents whose rights have not been terminated
  • An attorney for the child
  • A court-appointed special advocate
  • A citizen review board
  • A Tribal court
Determinations Made at Hearings

At a permanency hearing the court shall:

  • If the case plan is to reunify the family, determine whether the Department of Human Services has made reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home and whether the parent has made sufficient progress to make it possible for the child to safely return home.
  • If the case plan is something other than to reunify the family, determine whether the department has:
    • Made reasonable efforts to place the child in a timely manner in accordance with the plan, including, if appropriate, reasonable efforts to place the child through an interstate placement, and to complete the steps necessary to finalize the permanent placement
    • Considered permanent placement options for the child, including, if appropriate, whether the department has considered both permanent in-State placement options and permanent interstate placement options for the child
  • Determine whether further efforts will make it possible for the child to safely return home within a reasonable time and order that the parents participate in specific services for a specific period of time and make specific progress within that period of time
  • Review the efforts made by the department to develop the concurrent permanent plan, and, if adoption is the concurrent case plan, has identified a suitable adoptive placement for the child

When the child is age 14 or older, the court also shall review the comprehensive plan for the child’s transition to successful adulthood and determine and make findings as to:

  • Whether the plan is adequate to ensure the child’s transition to successful adulthood
  • Whether the department has offered appropriate services pursuant to the plan
  • Whether the department has involved the child in the development of the plan
Permanency Options

The court shall determine the permanency plan for the child that may include whether and, if applicable, when:

  • The child will be returned to the parent.
  • The child will be placed for adoption, and a petition for termination of parental rights will be filed.
  • The child will be referred for establishment of legal guardianship.
  • The child will be placed with a fit and willing relative.
  • If the child is age 16 or older, the child will be placed in another planned permanent living arrangement.

If the court determines that the permanency plan for a child should be placement with a fit and willing relative, the court’s determination of why placement with the child’s parents, or for adoption, or placement with a legal guardian, is not appropriate.

If the court determines that the permanency plan for a child age 16 or older should be another planned permanent living arrangement, the court shall determine:

  • Why another planned permanent living arrangement is in the child’s best interests and a compelling reason why it would not be in the best interests of the child to be returned home, placed for adoption, placed with a legal guardian or placed with a fit and willing relative
  • That the department has taken steps to ensure that:
    • The child’s substitute care provider is following the reasonable and prudent parent standard.
    • The child has regular, ongoing opportunities to engage in age-appropriate or developmentally appropriate activities, including consultation with the child in an age-appropriate manner about the opportunities the child has to participate in the activities.

If an Indian child is involved, the court shall follow the placement preference established by the Indian Child Welfare Act.

 

Determining the Best Interests of the Child

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Current Through March 2016

In determining the custody of a minor child, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court shall consider the following relevant factors:

  • The emotional ties between the child and other family members
  • The interest of the parties in and attitude toward the child
  • The desirability of continuing an existing relationship
  • The abuse of one parent by the other
  • The preference of the primary caregiver of the child, if the caregiver is deemed fit by the court
  • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child

The court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or 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 rights of the parent or parents may be terminated if the court finds:

  • The parent is unfit by reason of a single or recurrent incident of extreme conduct toward any child. In determining extreme conduct, the court shall consider the following:
    • Rape, sodomy, or sex abuse of any child by the parent
    • Intentional starvation or torture of any child by the parent
    • Abuse or neglect by the parent of any child resulting in death or serious physical injury
    • Conduct by the parent to aid or abet another person who, by abuse or neglect, caused the death of any child
    • Conduct by the parent to attempt, solicit, or conspire to cause the death of any child
    • Previous involuntary terminations of the parent’s rights to another child if the conditions giving rise to the previous action have not been ameliorated
    • Conduct by the parent that knowingly exposes any child of the parent to the storage or production of methamphetamines from precursors
  • The parent is unfit by reason of conduct or condition seriously detrimental to the child, and integration of the child into the home of the parent is improbable within a reasonable time due to conduct or conditions not likely to change. In determining such conduct and conditions, the court shall consider, but is not limited to, the following:
    • Emotional illness, mental illness, or mental retardation of the parent of such nature and duration as to render the parent incapable of providing proper care for the child for extended periods of time
    • Conduct toward any child of an abusive, cruel, or sexual nature
    • Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired
    • Physical neglect of the child
    • Lack of effort of the parent to adjust circumstances, conduct, or conditions to make it possible for the child to safely return home within a reasonable time
    • Failure of the parent to effect a lasting adjustment after reasonable efforts by available social agencies for such extended duration of time that it appears reasonable that no lasting adjustment can be effected
    • Criminal conduct that impairs the parent’s ability to provide adequate care for the child
  • The parent has failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for 6 months. In determining such failure or neglect, the court shall disregard any incidental or minimal expressions of concern or support and shall consider, but is not limited to, one or more of the following:
    • Failure to provide care or pay a reasonable portion of substitute physical care and maintenance if custody is lodged with others
    • Failure to maintain regular visitation or other contact with the child that was designed to reunite the child with the parent
    • Failure to contact or communicate with the child or with the custodian of the child
  • The child has been abandoned or left under such circumstances that the identity of the parent was unknown and could not be ascertained, despite diligent searching, and the parent has not come forward to claim the child within 3 months following the finding of the child.

The rights of the parent may be terminated if the court finds that the child was conceived as the result of an act that led to the parent’s conviction for rape. Termination of parental rights under this section does not relieve the parent of any obligation to pay child support. Termination of parental rights under this section is an independent basis for termination of parental rights, and the court need not make any of the considerations or findings described above.

Circumstances That Are Exceptions to Termination of Parental Rights

The Department of Human Services shall file a petition to terminate the parental rights of a parent when the child has been in foster care for 15 of the most recent 22 months or there are grounds to terminate unless:

  • The child is being cared for by a relative, and that placement is intended to be permanent.
  • There is a compelling reason, which is documented in the case plan, for determining that filing such a petition would not be in the best interests of the child. Such compelling reasons include, but are not limited to:
    • The parent is successfully participating in services that will make it possible for the child to safely return home within a reasonable time.
    • Another permanent plan is better suited to meet the health and safety needs of the child, including the need to preserve the child’s sibling attachments and relationships.
    • The court or local citizen review board in a prior hearing or review determined that, while the case plan was to reunify the family, the department did not make reasonable efforts or, if the Indian Child Welfare Act applies, active efforts to make it possible for the child to safely return home.
  • The department has not provided to the family of the child, consistent with the time period in the case plan, such services as the department deems necessary for the child to safely return home, if reasonable efforts to make it possible for the child to safely return home are required.

No petition to terminate parental rights may be filed until the court has determined that the permanency plan for the child should be adoption after a permanency hearing pursuant to § 419B.476.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘department’ means the Department of Human Services, Child Welfare.

‘Guardian’ means an individual who has been granted guardianship of a child through a judgment of the court.

The term ‘relative’ applies to the following individuals:

  • A blood relative or half-blood relative of preceding generations denoted by the prefixes of grand, great, or great-great
  • A sibling, including a person with a sibling relationship to the child or young adult through a putative father
  • An aunt, uncle, nephew, niece, first cousin, and first cousin once removed
  • A spouse of anyone listed above, even if a petition for annulment, dissolution, or separation has been filed or the marriage is terminated by divorce or death
  • A person defined as a relative by the law or custom of the Tribe if the child is an Indian child under the Indian Child Welfare Act or in the legal custody of a Tribe
  • A stepparent or former stepparent, if the child had a relationship with the former stepparent prior to the most recent episode of department custody; a stepbrother; or a stepsister
  • The registered domestic partner of the parent of the child or a former registered domestic partner of the parent of the child, if the child had a relationship with the former domestic partner prior to the most recent episode of department custody
  • The adoptive parent of a sibling of the child
  • The unrelated legal or biological parent of a half-sibling of the child when the half-sibling is living with the unrelated legal or biological parent
  • A person not related to the child who is identified as a member of the family by the child and has had an emotionally significant relationship with the child prior to the most recent episode of department custody

‘Substitute caregiver’ means a relative caregiver, foster parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the department.

Purpose of Guardianship

The department may consider guardianship as a permanency plan for a child in the care or legal custody of the department based on the individual safety, permanency, and well-being needs of the child, when the department has determined:

  • The child is unable to safely return to the home of a parent.
  • Adoption is not an appropriate plan based on the best interests of the child.

When considering guardianship as the permanency plan, the caseworker must:

  • Consult with the child who is age 14 or older
  • Seek input from the child as developmentally appropriate, regardless of the age of the child
  • Assess the parents’ acceptance of guardianship as a permanency plan, their desire for continued contact with the child, and how this will impact the plan
A Guardian’s Rights and Responsibilities

A person, agency, or institution having guardianship of a ward by reason of appointment by the court has the duties and authority of a guardian of the ward, including, but not limited to, the following:

  • To authorize surgery for the ward
  • To authorize the ward to enlist in the Armed Forces of the United States
  • To consent to the ward’s marriage
  • To consent to the adoption of the ward
  • To make other decisions concerning the ward of substantial legal significance
  • To make such reports and to supply such information to the court as the court may from time to time require

A person appointed guardian of the ward by the court is guardian only and not a conservator of the estate of the ward, unless that person also is appointed conservator of the ward’s estate in a protective proceeding as provided in Chapter 125.

Qualifying the Guardian

When a child is in the legal custody of the department, the department shall conduct a guardianship study 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 child’s best interests.

When a child is not in the custody of the department, the court may order the proposed guardian to obtain, at his or her expense, a guardianship study of his or her home.

In regulation: In order to be considered as a potential guardian, the substitute caregiver must:

  • Have a current certificate of approval from the department, a child-placing agency, or a participating Tribe
  • Be able to maintain a stable relationship with the child and function effectively without department supervision
  • Have an updated home study describing how the caregiver’s skills and abilities meet the best interests and needs for safety and permanency for the child
  • Have adequate means of financial support and connections to community resources
  • Have a strong commitment to caring permanently for the child

The caseworker must complete all of the following:

  • Assess the ability of the caregiver to ensure the child’s safety, permanency, and well-being
  • Assess the commitment of the caregiver to raise the child
  • Provide the caregiver with information regarding the duties and responsibilities of a guardian
  • Assess whether the caregiver and the child can maintain a stable relationship and function effectively without department supervision
  • Consult with the caregiver regarding guardianship assistance:
    • If guardianship assistance is requested, inform the caregiver of the eligibility requirements of guardianship assistance
    • If guardianship assistance will not be provided, ensure that the caregiver has sufficient financial support and connections to community resources to meet the needs of the child without this assistance
Procedures for Establishing Guardianship

At any time after a child is placed under court jurisdiction, but prior to filing or after dismissal of a petition for termination of the parent’s rights, a party may file a petition for permanent guardianship. The grounds for granting a permanent guardianship are the same as those for termination of parental rights.

The court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

  • The grounds cited in the petition are true.
  • It is in the best interests of the child that the parent never have physical custody of the child, but that other parental rights and duties should not be terminated.

If an Indian child is involved, the permanent guardianship must be in compliance with the Indian Child Welfare Act. The facts supporting any finding made to establish a permanent guardianship for an Indian child, including the finding that continued custody by the parents or Indian custodian would result in serious emotional or physical harm to the Indian child, must be established beyond a reasonable doubt.

If the court has approved a plan of guardianship under § 419B.476, the court may grant the motion for guardianship if the court determines, after a hearing, that:

  • The child cannot safely return to a parent within a reasonable amount of time.
  • Adoption is not an appropriate plan for the child.
  • The proposed guardian is suitable to meet the needs of the child and is willing to accept the duties and authority of a guardian.
  • Guardianship is in the child’s best interests. In determining whether guardianship is in the child’s best interests, the court shall consider the child’s wishes.

Unless vacated under § 419B.368, a guardianship established under this section continues as long as the child is subject to the court’s jurisdiction.

Contents of a Guardianship Order

Upon granting a motion for guardianship, the court shall issue letters of guardianship to the guardian. A guardian may disclose letters of guardianship when necessary to fulfill the duties of a guardian. Letters of guardianship grants the authority and duties of guardian for child, including legal custody of the child.

In the order appointing the guardian, the court shall require the guardian to file with the court a verified written report within 30 days after each anniversary of appointment and may:

  • Specify the frequency and nature of visitation or contact between relatives, including siblings, and the child, if the court determines that visitation or contact is in the child’s best interests
  • Enter an order for child support
  • Make any other order to provide for the child’s continuing safety and well-being

Except as otherwise limited by the court, a person appointed guardian has legal custody of the child and the duties and authority of legal custodian and guardian. A guardian is not liable to third persons for acts of the ward solely by reason of being appointed guardian.

Modification/Revocation of Guardianship

The court may modify a guardianship order if the court determines that doing so would be in the child’s best interests.

The court may vacate a guardianship order, return the child to the custody of a parent, and make any other order the court is authorized to make under this chapter if the court determines that:

  • It is in the child’s best interests to vacate the guardianship.
  • The conditions and circumstances that gave rise to the establishment of the guardianship have been satisfactorily addressed.
  • The parent is presently able and willing to adequately care for the child.

The court may vacate a guardianship order after determining that the guardian is no longer willing or able to fulfill the duties of a guardian. In determining whether it is in the child’s best interests to modify or vacate a guardianship, the court shall consider, but is not limited to considering:

  • The child’s emotional and developmental needs
  • The child’s need to maintain existing and form new attachments and relationships, including those with the birth family
  • The child’s health and safety
  • The child’s wishes

If a guardianship is established under §§ 419B.366 and 419B.371, the court shall conduct a court review no later than 60 days before the child reaches age 18. At the hearing, the court shall inform the child that after reaching age 18 the child may not be placed in substitute care in the legal custody of the department.

Eligibility for Guardianship Subsidy

To be eligible for guardianship assistance, a child must:

  • Be a United States citizen or qualified alien
  • Be removed from his or her home pursuant to a voluntary placement or as a result of a judicial determination that continuation in the home would be contrary to his or her welfare
  • Have it determined by the department or Tribe that neither returning home nor adoption is an appropriate permanency option
  • Be eligible for title IV-E foster care maintenance payments during a 6 consecutive month period during which the child resided in the home of the potential guardian who was fully licensed, certified, or approved as meeting the requirements for a foster family home
  • Be in the department’s or Tribe’s care or custody for a minimum of 6 months, if the potential guardian is the child’s relative, or 12 months, if the potential guardian is a substitute caregiver who meets the definition of a relative under the rules
  • Demonstrate a strong attachment to the potential guardian
  • Be consulted regarding the guardianship when the child is age 14 or older

To be eligible for title IV-E guardianship assistance, the prospective guardian must meet the definition of a relative, as defined in the rules.

A stepparent is considered a parent for the purpose of eligibility for guardianship assistance unless a petition for annulment, dissolution, or separation has been filed, or the marriage has been terminated by divorce or death.

A foster parent may only be considered a relative for the purpose of eligibility for guardianship assistance when:

  • There is a compelling reason why adoption is not an achievable permanency plan.
  • The foster parent is currently caring for a child who has a permanency plan or concurrent permanent plan of guardianship.
  • The foster parent has cared for the child for at least 12 of the past 24 months.
  • The department or Tribe has approved the foster parent for consideration as a guardian.
Links to Agency Policies

Oregon Administrative Code, Title 413, Division 70, Substitute Careexternal link

Oregon Department of Human Services:

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

If the court finds that a child is in need of placement or continuation in substitute care, there shall be a preference given to placement of the child with relatives and persons who have a caregiver relationship with the child. The Department of Human Services shall make diligent efforts to place the child with such persons and shall report to the court the efforts made by the department to effectuate that placement.

The term ‘caregiver relationship’ means a relationship between a person and a child:

  • That has existed:
    • For the 12 months immediately preceding the initiation of the dependency proceeding
    • For at least 6 months during the dependency proceeding
    • For half of the child’s life if the child is younger than 6 months old
  • In which the person who had physical custody of the child resided in the same household as the child
  • In which the person provided the child on a daily basis with the love, nurturing, and other necessities required to meet the child’s psychological and physical needs
  • On which the child depended to meet his or her needs

‘Caregiver relationship’ does not include a relationship between a child and a person who is the nonrelated foster parent of the child unless the relationship continued for a period of at least 12 consecutive months.

Requirements for Placement with Relatives

In attempting to place the child, the department shall consider, but not be limited to considering, the following:

  • The ability of the person being considered to provide safety for the child, including a willingness to cooperate with any restrictions placed on contact between the child and others, and to prevent anyone from influencing the child in regard to the allegations of the case
  • The ability of the person being considered to support the efforts of the department to implement the permanent plan for the child
  • The ability of the person being considered to meet the child’s physical, emotional, and educational needs, including the child’s need to continue in the same school or educational placement
  • Which person has the closest existing personal relationship with the child if more than one person requests to have the child placed with them
  • The ability of the person being considered to provide a placement for the child’s sibling who is also in need of placement

In cases where the Indian Child Welfare Act applies, the placement preferences of the Indian Child Welfare Act shall be followed.

Requirements for Placement of Siblings

If a child or ward in need of placement or continuation in substitute care has a sibling also in need of placement or continuation in substitute care, the department shall make diligent efforts to place the siblings together and shall report to the court the efforts made by the department to carry out the placement, unless the court finds that placement of the siblings together is not in the best interests of the child or the ward or the child’s or the ward’s sibling.

Relatives Who May Adopt

When identifying potential adoptive resources for a child or sibling group, the caseworker must consider the needs and the best interests of each child and assess the knowledge, skills, and abilities of each potential adoptive resource in the following order of preference:

  • A relative as defined in rule 413-120-0710(12)(a)-(c)
  • A relative as defined in rule 413-120-0710(12)(d), or a current caretaker, or both
  • A current caretaker and a general applicant, when a determination has been made under rule 413-120-0580(2)(b)(B)
  • Except as provided above, a general applicant

When identifying potential adoptive resources for a child, the child’s caseworker may:

  • After discussion with his or her supervisor and on a case-by-case basis, consult with a birth parent to identify one to three potential adoptive resources
  • Provide a birth parent with nonidentifying information from the adoption home study of a potential adoptive resource who is a general applicant not known to the parent or child

When more than one relative is interested in being an adoptive resource, the department must consult with those interested to facilitate agreement on the most appropriate potential adoptive resource. When agreement cannot be reached, the Department of Human Services considers relatives among both maternal and paternal family members who have expressed an interest and chooses up to a total of three families for adoption home studies, to be conducted by either the department or another public or private agency.

Requirements for Adoption by Relatives

The child’s caseworker must comply with the following requirements:

  • Make reasonable efforts to identify and place the child with an adoptive resource in a timely manner
  • Request input about the knowledge, skills, abilities, and commitment a potential adoptive resource needs to best be able to meet the current and lifelong needs of the child from:
    • Professionals who have worked closely with the child, when applicable
    • The child’s attorney, court-appointed special advocate, Tribal representative, and substitute caregiver, when applicable
  • Receive and review adoption home studies in a timely manner
  • Following consultation with his or her supervisor, identify up to three potential adoptive resources following the order of preference in rule 413-120-0730 to be considered for adoption placement selection who:
    • Meet the standards of an adoptive home
    • Have the knowledge, skills, abilities, and commitment to raise each child under consideration for adoption
    • Have the capacity to meet the current and lifelong safety, permanency, and well-being needs of the child

 

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

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Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts include preventive and reunification services.

For an Indian child, the Department of Human Services must make active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent or eliminate the need for removal of the child from the home
  • To make it possible for the child to return home safely
When Reasonable Efforts Are NOT Required

The court may find that the department is not required to make reasonable efforts if one of the following circumstances exists:

  • The parent has subjected the child to aggravated circumstances including, but not limited to, the following:
    • The parent by abuse or neglect has caused the death of any child.
    • The parent has attempted, solicited, or conspired to cause the death of any child.
    • The parent by abuse or neglect has caused serious physical injury to any child.
    • The parent has subjected any child to rape, sodomy, or sexual abuse.
    • The parent has subjected any child to intentional starvation or torture.
    • The parent has abandoned the child.
    • The parent has unlawfully caused the death of the other parent of the child.
  • The parent has been convicted in any jurisdiction of one of the following crimes:
    • Murder or manslaughter of another child of the parent
    • Aiding, abetting, attempting, conspiring, or soliciting to commit any such crime
    • Felony assault that results in serious physical injury to the child or another child of the parent
  • The parent’s rights to another child have been terminated involuntarily.

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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”
(2) (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.”

2. A family condition is likely to result in harm.

According to OAR 413-015-0115 “Harm” means:
(19) “….. 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.”
3. 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
(c) Life threatening damage.

4. The family condition is observable and can be clearly described and articulated.

OAR 413-015-0115 Definitions
(26) “Observable” means specific, real, can be seen and described. Observable does not include suspicion or gut feeling.”

5. 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.

Summary

CPS has not proven that that there was any domestic violence during our argument.

CPS has not proven that the argument between my spouse and myself could have resulted in severe harm to our children.

CPS has not proven in any way 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 not proven that our current mental condition placed or places our children at a threat of severe harm.

Because there never was any severe harm or severe effects caused to our children, and because our situation does not fit the statutory definition of child abuse or neglect. the Safety Threats should have been UNFOUNDED.

According to OAR 413-015-0445 and OAR 413-040-0032, this case should be immediately closed and our children returned.

I am requesting a court order for the return of my children immediately.
Caseworkers Blatant Malfeasance

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. Newly identified safety threats are to be listed.

The caseworker, Stacie Navarro, has never done this. In fact attached you will find a letter from DHS stating that the mother, Meaghan M Gotterba‘s, safety threat of “Neglect: Lack of Supervision and Protection of Haiden, Jaiden, and Kaiden Tullis has now been changed to UNFOUNDED.”

The caseworker did not discover this information out to all parties to the case.

If this information had been discovered out, then this case should have been updated to at least an In-Home Safety Plan according to OAR 413-040-0017

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 us specifically about the conditions for return, expected outcomes, nor has she talked to us personally about a case plan where everything is updated. She also has not updated any visitation plan with us. We have never seen any visitation plan other than the original one made at intake almost 6 months ago.

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 false information was presented to Dr. Basham for the Psych Evaluations and to the caseworker’s supervisor.

And because of the caseworker, Stacie Navarro, not doing her mandated obligations of updating anything, she is thus giving false testimony to this court today.

I am requesting a court order for the return of our children immediately.

Executed October, 10, 2016 Springfield, Oregon
I declare under penalty of perjury that the foregoing is true and correct.

_________________________________

_________________________________

 

 

 

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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