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

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

Rhode Island

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

 

Definitions of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (587 KB) of this publication.

Current Through February 2016

Physical Abuse

‘Abused and/or neglected child’ means a child whose physical or mental health or welfare is harmed or threatened with harm when his or her parent or other person responsible for his or her welfare:

  • Inflicts or allows to be inflicted upon the child physical or mental injury, including excessive corporal punishment
  • Creates or allows to be created a substantial risk of physical or mental injury to the child, including excessive corporal punishment

‘Shaken baby syndrome’ means a form of abusive head trauma characterized by a constellation of symptoms caused by other than accidental traumatic injury resulting from the violent shaking and/or impact upon an infant or young child’s head.

Neglect

The term ‘abused and/or neglected child’ includes a child whose physical or mental health or welfare is harmed or threatened with harm when the child’s parent or other person responsible for his or her welfare:

  • Fails to supply the child with adequate food, clothing, shelter, or medical care, although financially able to do so or offered financial or other reasonable means to do so
  • Fails to provide the child with a minimum degree of care or proper supervision or guardianship because of his or her unwillingness or inability to do so by situations or conditions such as, but not limited to, social problems, mental incompetency, or the use of a drug, drugs, or alcohol to the extent that the parent or other person responsible for the child’s welfare loses his or her ability or is unwilling to properly care for the child
Sexual Abuse/Exploitation

The term ‘abused and/or neglected child’ includes a child whose physical or mental health or welfare is harmed or threatened with harm when his or her parent or other person responsible for his or her welfare:

  • Commits or allows to be committed against the child an act of sexual abuse
  • Sexually exploits the child in that the person allows, permits, or encourages the child to engage in prostitution
  • Sexually exploits the child in that the person allows, permits, encourages, or engages in the obscene or pornographic photographing, filming, or depiction of the child in a setting that, taken as a whole, suggests to the average person that the child is about to engage in or has engaged in any sexual act, or that depicts any such child under age 18 performing sodomy, oral copulation, sexual intercourse, masturbation, or bestiality
  • Commits or allows to be committed any sexual offense against the child
  • Commits or allows to be committed against any child an act involving sexual penetration or sexual contact if the child is under age 15; or if the child is age 15 or older, and (1) force or coercion is used by the perpetrator or (2) the perpetrator knows or has reason to know that the victim is a severely impaired person or physically helpless
Emotional Abuse

‘Mental injury’ includes a state of substantially diminished psychological or intellectual functioning related to, but not limited to, such factors as failure to thrive, ability to think or reason, control of aggressive or self-destructive impulses, acting out, or misbehavior, which includes incorrigibility, ungovernability, or habitual truancy. The injury must be clearly attributable to the unwillingness or inability of the parent or other person responsible for the child’s welfare to exercise a minimum degree of care toward the child.

Abandonment

Citation: Gen. Laws § 40-11-2
The term ‘abused and/or neglected child’ includes a child whose physical or mental health or welfare is harmed or threatened with harm when his or her parent or other person responsible for his or her welfare abandons or deserts the child.

Standards for Reporting

Citation: Gen. Laws § 40-11-3
A report is required when any person has reasonable cause to know or suspect that a child has been abused or neglected.

Persons Responsible for the Child

‘Person responsible for child’s welfare’ means:

  • The child’s parent or guardian
  • Any individual, age 18 age or older, who resides in the home of a parent or guardian and has unsupervised access to a child
  • A foster parent
  • An employee of a public or private residential home or facility
  • Any staff person providing out-of-home care
Exceptions

No exceptions are specified in statute.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means the occurrence of one or more of the following acts between present or former family members, parents, stepparents, or persons who are or have been in a substantive dating or engagement relationship within the past 1 year in which at least one of the persons is a minor:

  • Attempting to cause or causing physical harm
  • Placing another in fear of imminent serious physical harm
  • Causing another to engage involuntarily in sexual relations by force, threat of force, or duress
  • Stalking or cyberstalking

‘Stalking’ means harassing another person or willfully, maliciously, and repeatedly following another person with the intent to place that person in reasonable fear of bodily injury.

‘Cyberstalking’ means transmitting any communication by computer to any person or causing any person to be contacted for the sole purpose of harassing that person or his or her family.

‘Harassing’ means following a knowing and willful course of conduct directed at a specific person with the intent to seriously alarm, annoy, or bother the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress or be in fear of bodily injury.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic abuse’ means the occurrence of one or more of the following acts between cohabitants or against the minor child of a cohabitant, or the occurrence of one or more of the following acts between persons who are or have been in a substantive dating or engagement relationship within the past 1 year or against a minor child in the custody of the plaintiff. ‘Domestic abuse’ shall be determined by the court’s consideration of the following factors:

  • The length of time of the relationship
  • The type of the relationship
  • The frequency of the interaction between the parties
  • Attempting to cause or causing physical harm
  • Placing another in fear of imminent serious physical harm
  • Causing another to engage involuntarily in sexual relations by force, threat of force, or duress
  • Stalking or cyberstalking

‘Stalking’ means harassing another person or willfully, maliciously, and/or repeatedly following another person with the intent to place that person in reasonable fear of bodily injury.

‘Cyberstalking’ means transmitting any communication by computer to any person or causing any person to be contacted for the sole purpose of harassing that person or his or her family.

‘Harassing’ means following a knowing and willful course of conduct directed at a specific person with the intent to seriously alarm, annoy, or bother the person, and which serves no legitimate purpose. The course of conduct must cause a reasonable person to suffer substantial emotional distress or to be in fear of bodily injury.

Persons Included in the Definition

In civil law: ‘Parents’ means persons who together are the legal parents of one or more children regardless of their marital status or whether they have lived together at any time.

‘Present or former family member’ means the spouse, former spouse, minor children, stepchildren, or persons who are related by blood or marriage.

‘Substantive dating’ or ‘engagement relationship’ means a significant and personal/intimate relationship that shall be adjudged by the court’s consideration of the following factors:

  • The length of time of the relationship
  • The type of relationship
  • The frequency of interaction between the parties

In criminal law: ‘Cohabitants’ means emancipated minors or persons age 18 or older, not related by blood or marriage, who together are not the legal parents of one or more children, and who have resided together within the preceding 3 years or who are residing in the same living quarters.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

All records concerning reports of child abuse and neglect, including reports made to the department, shall be confidential except as specifically provided by this chapter or § 42-72-8, or specifically authorized by the family court in furtherance of the purposes directly connected with this chapter.

Any records of the department pertaining to children and their families in need of service pursuant to the provisions of this chapter, or for whom an application for services has been made, shall be confidential and only disclosed as provided by law.

Persons or Entities Allowed Access to Records

Records may be disclosed when necessary to:

  • The attorney general when the office is engaged in the investigation or prosecution of criminal conduct by another relating to the child or other children within the same family unit
  • Individuals or agencies engaged in medical, psychological, or psychiatric diagnosis or treatment or education of the person under the supervision of the department
  • Individuals or agencies for the purposes of temporary or permanent placement of the person
  • The family court
  • The child’s guardian ad litem or attorney
  • Any mandated reporter who made a report of child abuse involving the subject child
  • A physician who believes or has reasonable cause to suspect that the child may have been abused or neglected
  • The Department of Corrections in the case of an individual who has been transferred to the jurisdiction of that department
  • Individuals employed by a State or county child welfare agency outside of Rhode Island when the information is needed to ensure the care, protection, and/or treatment of any child
  • An administrative hearing officer for purposes of making a determination of relevancy to the merits of the administrative matter pending before the hearing
  • A court of proper jurisdiction for purposes of making a determination of relevancy to the merits of the civil or criminal action pending before the court
When Public Disclosure of Records is Allowed

The director may disclose the findings or other information about a case as the director deems necessary in a case of child abuse or neglect that has resulted in a child fatality or near fatality.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person participating in good faith in making a report pursuant to the reporting laws shall have immunity from any civil or criminal liability that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

Any person who has reasonable cause to know or suspect that a child has been abused, neglected, or sexually abused by another child shall report the information within 24 hours.

A physician or registered nurse practitioner who has cause to suspect that a child is abused or determines that a child under age 12 is suffering from any sexually transmitted disease shall report his or her suspicions to the department. An immediate oral report shall be made by telephone or otherwise, to both the department and law enforcement agency, and shall be followed by a report, in writing, to the department and law enforcement agency explaining the extent and nature of the abuse or neglect the child is alleged to have suffered.

Content of Reports

A written report shall follow the oral report. The written report will explain the extent and nature of the abuse or neglect the child is alleged to have suffered.

Reporting Suspicious Deaths

Any mandated reporter who has reasonable cause to know or suspect that a child has died as a result of child abuse or neglect shall immediately report that information to the department, which shall cause the report to be investigated immediately. Upon receipt of the report, the department shall immediately refer the information to the local law enforcement agency or the State police as well as to the office of the medical examiner.

The office of the medical examiner shall investigate the report and communicate its preliminary findings, orally within 72 hours, and in writing within 7 working days, to the appropriate law enforcement agency, to the department, and if the person who made the report is an employee or a member of the staff of a hospital, to the hospital.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports shall be made to the Department of Children, Youth and Families. Physicians and nurse practitioners shall make reports of suspected sexual abuse to both the department and a law enforcement agency.

In regulation: The department shall maintain a child protective services hotline, a statewide, toll-free phone number, to receive child abuse and neglect reports 24 hours per day, 7 days per week.

Initial Screening Decisions

The department will investigate when a report that meets investigation criteria is made to the hotline. The report must involve a child younger than age 18 or younger than age 21 if the youth is residing in foster or institutional care or if the youth is in department custody, regardless of placement.

Investigation Criteria 1–Child Abuse/Neglect Reports: The department investigates reports that allege child abuse and/or neglect when reasonable cause to believe that abuse or neglect exists. Reports accepted for investigation contain the following elements:

  • Harm or substantial risk of harm to the child is present.
  • A specific incident or pattern of incidents suggests child abuse or neglect.
  • A person responsible for the child’s welfare, including a parent, guardian, or other caregiver, has allegedly abused or neglected the child.

Investigation Criteria 2–Nonrelative Caregiver: An investigation is initiated when the department receives a report that a parent has assigned or otherwise transferred to a nonrelative his or her rights or duties with respect to the permanent care and custody of his or her child unless the arrangement was authorized by an order of the court. The investigation will determine if the home is suitable for the child.

Investigation Criteria 3–Sexual Abuse of a Child by Another Child: The department immediately will investigate sexual abuse of a child by another child.

Investigation Criteria 4–Duty to Warn: If the hotline receives a report that a perpetrator of sexual abuse or serious physical abuse has access to another child in a family dwelling, that report is assigned for investigation.

Investigation Criteria 5–Alert to Area Hospitals, Safety of Unborn Child: The department issues an alert to area hospitals when a parent has a history of substantiated child abuse/neglect or a child abuse/neglect conviction and there is concern about the safety of a child.

Agency Conducting the Assessment/Investigation

The department shall investigate reports of child abuse and neglect made under this chapter in accordance with the rules the of the department.

The department shall forward immediately any reports of institutional child abuse and neglect to the child advocate who shall investigate the report. In the event that after investigation the department has reasonable cause to know or suspect that a child has been subjected to criminal abuse or neglect, the department shall forward immediately any information related to that knowledge or suspicion to the law enforcement agency.

Assessment/Investigation Procedures

The investigation shall determine the circumstances surrounding the alleged abuse or neglect and the cause thereof. The investigation shall include personal contact with the child named in the report and any other children in the same household.

In regulation: The department has established standards for investigating child abuse and/or neglect reports. These standards contain general directives for the handling of all investigations and designate different activities that must be completed. The assessment of the safety of a child is a critical component of a child protective investigation.

The investigation must include personal contact with each child named in the report as well as any other children in the household or child care facility. The investigator must make every effort to locate and interview each child who was residing in the household or present in the child care facility at the time the abuse and/or neglect took place, whether or not the child is the alleged victim.

Assessment of risk is the process by which Child Protective Services (CPS) determines the current safety of a child and the prospects of future harm through abuse or neglect. This assessment process is the focal point of each investigation and is the basis of most investigative decisions. It is an ongoing process that should occur each time a new piece of evidence/information is obtained. Failure to make a thorough and up-to-date assessment could later jeopardize the safety of the child.

Timeframes for Completing Investigations

Intake workers initially set the response priority for each referral of child abuse or neglect. Response priorities delineate the time limit for the intake workers to process the CPS report and for the initiation of an investigation. Response priorities are categorized into three types:

  • Emergency Response: The CPS report must be processed within 10 minutes after the call is completed. A child protection investigator (CPI) must respond to the report within 10 minutes of assignment.
  • Immediate Response: The CPS report must be processed within 1 hour after the call is completed. A CPI must respond to the report within the shift in which the call was received.
  • Routine Response: The CPS report must be processed within 1 hour after the call is completed. A CPI must respond to the report within 24 hours of assignment. Routine Response criteria are used for all other reports in which there is minimal risk of harm to the child.
Classification of Reports

The standard of proof to indicate a report of child abuse or neglect is a ‘preponderance of the evidence.’ This is defined as evidence of a greater weight or more convincing than the evidence in opposition to it; that is, evidence that, as a whole, shows that the fact sought to be proved is more probable than not.

A notification will be made to a person who is alleged to have perpetrated abuse and/or neglect upon a child, to inform that person whether the department’s CPS investigation will be ‘indicated’ or ‘unfounded,’ and to identify the allegations that have been ‘indicated’ or ‘unfounded.’

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Any physician or duly certified registered nurse practitioner is required to report.

Reporting by Other Persons

Any person who has reasonable cause to know or suspect that a child has been abused or neglected must report.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when:

  • A person has reasonable cause to know or suspect that a child has been abused or neglected.
  • A physician or nurse practitioner has cause to suspect that a child brought to them for treatment is an abused or neglected child, or he or she determines that a child under age 12 is suffering from any sexually transmitted disease.
Privileged Communications

The privileged quality of communication between husband and wife and any professional person and his or her patient or client, except that between attorney and client, shall not constitute grounds for failure to report.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Not addressed in statutes reviewed.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Abused and/or neglected child’ means a child whose physical or mental health or welfare is harmed or threatened with harm when his or her parent or other person responsible for his or her welfare fails to provide the child with a minimum degree of care or proper supervision or guardianship because of his or her unwillingness or inability to do so by situations or conditions such as, but not limited to, social problems, mental incompetency, or the use of a drug, drugs, or alcohol to the extent that the parent or other person responsible for the child’s welfare loses his or her ability or is unwilling to properly care for the child.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

Any child who is alleged to be abused or neglected as a subject of a petition filed in family court shall have a guardian ad litem (GAL) and/or a court-appointed special advocate (CASA) appointed by the court to represent this child, all in the discretion of the court.

The Use of Court-Appointed Special Advocates (CASAs)

The court may appoint a CASA to represent the child.

Qualifications/Training

The child advocate shall provide training and technical assistance to GALs and CASAs appointed by the family court to represent children in proceedings before that court.

Specific Duties

This issue is not addressed in the statutes reviewed.

How the Representative Is Compensated

his issue is not addressed in the statutes reviewed.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A written service plan for care and treatment shall be prepared for each child under the supervision of the Department of Children, Youth, and Families.

In regulation: A written service plan is required for the care and treatment of each child under the department’s supervision. The service plan must be submitted within 30 days when there is a court finding of dependency, neglect, or abuse on a petition filed by the department.

Subsequent service plans are completed by the assigned primary service worker at 6 month intervals or within 30 days of a change in the permanency goal.

Who May Participate in the Case Planning Process

The primary service worker will obtain signatures on the service plan to confirm that all parties participated in the development, review, and revision of the plan and were provided the opportunity to agree or disagree with the content. The following individuals must sign the service plan:

  • Parents or guardians
  • Children age 12 or older (with capacity to participate)
  • Primary service workers and supervisors
  • Foster parents or provider agency representatives who are involved in the development of the service plan and are directly responsible to provide the services prescribed in the plan
  • Department staff persons, other than the primary service worker, who are involved with the family
  • Preadoptive parents in cases in which parental rights have been terminated and the child is in a preadoptive home in which the foster parents have initiated the adoption process
Contents of a Case Plan

The service plan shall include, but not be limited to, a statement of the needs of each child and the proposed treatment and placement. If the plan is adoption or placement in another permanent home, the plan shall include documentation of the steps the department is taking to find an adoptive family or other permanent placement and to finalize permanency.

In regulation: A written service plan is required for the care and treatment of each child under the department’s supervision. The plan for the child must include information to determine the appropriateness of for out-of-home placement. In addition, the State must make reasonable efforts to place siblings removed from their home in the same foster care, adoption, or guardianship placement or facilitate visitation or ongoing contacts with those that cannot be placed together, unless it is contrary to the safety or well-being of any of the siblings. The plan must include:

  • A plan for ensuring that the child receives safe and proper care and that appropriate services are provided
  • To the extent available and accessible, the child’s health and education records
  • When appropriate, for a child age 16 or older, a written description of the program and services that will help prepare the youth for the transition toward a self-sufficiency
  • In the case of a child with respect to whom the permanency plan is adoption, guardianship, or another planned permanent living arrangement, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement

The service plan is time-limited, individualized, and strength-based and addresses:

  • How the family will mobilize their strengths and protective capacities to mitigate behaviors that contributed to child maltreatment
  • The behavior changes needed to ensure the child’s safety, permanency, and well-being
  • Action steps that will assist the family to reach the behavior change goal

Each plan includes an educational/medical statement that contains information that must be provided to the foster care provider when a child enters placement. Required information includes:

  • Name and address of health and educational providers
  • Grade-level performance
  • School record
  • A plan for educational stability, as follows:
    • Assurances that the child’s placement takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement
    • Assurances that the department has coordinated with appropriate local educational agencies to allow the child to remain in the same school or, if remaining in that school is not in the child’s best interests, assurances that the department and the local educational agencies provide immediate and appropriate enrollment in a new school
  • Records of the child’s immunizations, known medical problems, and medications
  • Any other relevant health and education information concerning the child

Each plan includes a permanency goal specific to the family’s situation, including a projected date for achieving the identified permanency goal. For a child remaining at home, the permanency goal is maintenance of the child at home. For a child in placement, the initial permanency goal is reunification in nearly all situations with specific exceptions as approved by the court.

For each child age 16 or older, where appropriate, the service plan must include a written description of the programs and services that will help the youth prepare for the transition from foster care to independence. The plan must address the following:

  • Housing
  • Financial support
  • Health care
  • Education and vocation planning
  • Procurement of necessary documents and a credit report
  • Personal community support systems

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts to reunite the family.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The department shall conduct a case plan review every 6 months.

A permanency hearing shall be held:

  • Within 12 months of the child’s placement in care and at least every 12 months thereafter
  • Within 30 days after a finding that reasonable efforts to reunify are not required
Persons Entitled to Attend Hearings

At the permanency hearing, all parties shall be allowed to be heard. The foster parents, any preadoptive parent, or relative providing care for the child shall be provided with notice of the hearing and may attend and present a report, oral or written, containing recommendations as to the best interests of the child. Such opportunity to be heard does not require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to a review or hearing.

Determinations Made at Hearings

At the permanency hearing, the court shall determine:

  • The appropriateness of the Department of Children, Youth and Families’ plan for service to the child and parent(s)
  • What services have been offered to strengthen and reunify the family
  • What efforts have been or should be made to evaluate or plan for other modes of care if return home of the child is not likely
  • Any further efforts that will promote the best interests of the child
Permanency Options

Permanency options include:

  • Return to the parent
  • Placement for adoption
  • Referral for legal guardianship
  • Placement with a fit and willing relative
  • Placement in another planned permanent living arrangement in cases for which the department has documented a compelling reason why another permanency option would not be in the best interests of the child

 

Determining the Best Interests of the Child

To better understand this issue and to view it across States, download the PDF (397 KB) of this publication.

Current Through March 2016

In considering the termination of rights, the court shall give primary consideration to the physical, psychological, mental, and intellectual needs of the child insofar as that consideration is not inconsistent with other provisions of this chapter.

The consideration shall include the following: If a child has been placed in foster family care, voluntarily or involuntarily, the court shall determine whether the child has been integrated into the foster family to the extent that the child’s familial identity is with the foster family and whether the foster family is able and willing to permanently integrate the child into the foster family; provided, that in considering integrating into a foster family, the court should consider:

  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining that environment and continuity for the child
  • The reasonable preference of the child, if the court determines that the child has sufficient capacity to express a reasonable preference

The State finds and declares that:

  • Parents have the primary responsibility for meeting the needs of their children, and the State has an obligation to help them discharge this responsibility or to assume this responsibility when parents are unable to do so.
  • The State has a basic obligation to promote, safeguard, and protect the social well-being and development of the children of the State through a comprehensive program providing for:
    • Social services and facilities for children who require guidance, care, control, protection, treatment, or rehabilitation
    • A permanent home and safe environment for children, services to children and their families to prevent the unnecessary removal of children from their homes, and foster care and services to children with special needs who must be removed from their families to meet their particular needs
    • The strengthening of the family unit and making the home safe for children by enhancing the parental capacity for good child care

 

Grounds for Involuntary Termination of Parental Rights

To better understand this issue and to view it across States, download the PDF (652 KB) of this publication.

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court shall terminate any and all legal rights of the parent to the child if it finds as a fact by clear and convincing evidence that:

  • The parent has abandoned the child.
  • The parent is unable to discharge his or her parental duties due to:
    • Institutionalization, including imprisonment, of such duration that the parent cannot care for the child for an extended period of time
    • A chronic substance abuse problem
  • The parent has subjected the child to conduct of a cruel or abusive nature.
  • The parent has subjected the child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.
  • The child has been in the custody of the department for at least 12 months, and reasonable efforts to rehabilitate the parent have failed.
  • The parent has been convicted of:
    • Murder or voluntary manslaughter of another child of the parent
    • Aiding, abetting, attempting, or soliciting to commit murder or voluntary manslaughter of another child of the parent
    • A felony assault that results in serious bodily injury to the child or another child of the parent
  • The parent has willfully neglected to provide proper care and maintenance for the child when financially able to do so.
  • The parent has failed to communicate with the child.
  • Parental rights to another child of the parent have been involuntarily terminated, and the parent continues to lack the ability to respond to services.
Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

To better understand this issue and to view it across States, download the PDF (1337 KB) of this publication.

Current Through December 2014

Definitions

Relative is defined as:

  • Grandparent, including step-grandparent, great-grandparent, or adoptive grandparent
  • Sibling; including half-brother, half-sister, stepbrother, stepsister, brother-in-law, sister-in-law, adoptive brother, or adoptive sister
  • Uncle or aunt of whole- or half-blood, including uncle-in-law, aunt-in-law, great-uncle, or great-aunt
  • First and second cousins, including cousin of whole- or half-blood or first and second cousins-in-law
  • Stepmother or stepfather
  • Nephew or niece, including nephew or niece of whole- or half-blood, nephew-in-law, niece-in-law, great-nephew, or great-niece

Relatives of the putative father will be considered if his name appears on the child’s birth certificate, he has admitted paternity in a court of proper jurisdiction, or he has signed an affidavit of paternity.

Spouses of any of the persons listed above continue to meet this relationship requirement even after the marriage is terminated by death or divorce.

Purpose of Guardianship

The Department of Children, Youth and Families utilizes a family driven and youth guided approach in developing an individualized, culturally sensitive family plan that addresses health, safety, and well-being when making permanency decisions. Federal and State law and department policy recognize legal guardianship as an important permanency option when family reunification, termination of parental rights, or adoption does not meet the child’s permanency needs.

Legal guardianship provides the caregiver with the opportunity to provide a safe and stable environment for the child without terminating parental rights and provides a permanency option for older children who do not want to be adopted. Legal guardianship provides the child with a sense of belonging, and placement with members of the family support system maintains consistency in a child’s life and helps decrease placement trauma.

Legal guardianship recognizes the tradition in many cultures of caring for related children without changing family relationships.

A Guardian’s Rights and Responsibilities

Legal guardianship provides the caregiver with the legal authority to make decisions on behalf of the child and the ability to care for the child without child welfare agency intervention.

Qualifying the Guardian

In assessing a kinship care home, issues of child safety and well-being are of utmost importance. Careful and sensitive assessments must be made of kinship care homes with particular attention to the following areas:

  • History of involvement with child protective services
  • History of criminal charges
  • The child’s comfort level with the kinship caregiver
  • The caregiver’s commitment to protecting the child’s health and safety, and their willingness and ability to protect the child from abuse and neglect, whether by the parents or others
  • Whether the relationship between the caregiver and the parent is positive
  • The caregiver’s willingness to care for the child as long as may be needed
  • Whether the kinship caregiver knows the child well and is physically healthy enough to care for the child
  • Whether the kinship placement will be able to keep siblings together, or, at the least, allow them regular contact

If the department determines that the relative is a fit and proper person to have placement of the child, taking into account any particular needs of the child and the child’s best interests, then the child shall be placed with that relative.

All kinship care placements must be licensed and are subject to criminal records checks, including fingerprinting, and the same licensing standards and foster parent training that apply to a nonrelative foster home. Under certain circumstances, a waiver may be granted for a non-safety related licensing requirements.

Procedures for Establishing Guardianship

The family court may grant a petition for legal guardianship initiated by the department for a child in the department’s care. The petition contains the written consent of the parent who previously had custody of the child and the department. The granting of legal guardianship terminates department custody, the involvement of the department with the child, and the department’s involvement with the child’s parents as it relates to that child.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

The court may revoke a legal guardianship if the court finds after hearing on a motion for revocation that continuation of the legal guardianship is not in the best interests of the child. Notice of any hearing on such motion is provided by the moving party to the department, the court-appointed special advocate, the parent or legal guardian, and any and all other interested parties.

Eligibility for Guardianship Subsidy

The State may make funds available through the department for special reimbursement to guardians appointed pursuant to this chapter. These funds will be disbursed in accordance with the guidelines to be promulgated by the department.

In regulation: The child is eligible for title IV-E kinship guardianship assistance if:

  • The child has been removed from home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child, and the child is eligible for title IV-E foster care maintenance payments while residing for at least 6 consecutive months in the home of the prospective legal guardian.
  • Being returned home or adopted are not appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the prospective legal guardian, and the legal guardian has a strong commitment to caring permanently for the child.
  • A child who is age 14 or older has been consulted regarding the legal guardianship arrangement.

The child and any sibling of the child may be placed in the same legal guardianship arrangement if the department and the guardian agree on the appropriateness of the arrangement for the siblings. Kinship guardianship assistance payments may be paid on behalf of each sibling placed with that legal guardian. The sibling does not have to meet the eligibility criteria above to be eligible for assistance.

The department provides kinship guardianship assistance payments on behalf of children to grandparents and other kinship caregivers who assume legal guardianship of children they have cared for as foster parents and have committed to care for permanently. Assistance payments cannot exceed the foster care maintenance payment that would have been paid on behalf of the child as if the child remained in a foster family home.

Links to Agency Policies

Rhode Island Department of Children, Youth and Families:

 

Placement of Children With Relatives

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

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Prior to the placement of a child in foster care, reasonable efforts shall be made to prevent or eliminate the need for removing the child from the child’s home, which efforts shall include placement of the child with a blood relative or other family member if such placement is in the best interests of the child.

In regulation: A kinship foster parent is an adult head of household, also referred to as caregiver, who is granted a license by the Department of Children, Youth, and Families (DCYF) to provide foster care for a related child in care or a child with whom the adult has a kinship bond. The kinship foster parent may be a relative or a member of the child’s family support system, such as a godparent, close family friend, or member of the child’s community. There may be one or two kinship foster parents in the household.

DCYF gives utmost consideration to placing a child in a relative or kinship foster home prior to seeking a nonrelative placement.

Requirements for Placement with Relatives

Prospective foster and adoptive parents are subject to the same licensing process, including screening, interview, home study, training, and background checks. The Foster Care and Adoption License allows a licensed caregiver to transition to or from the role of foster or adoptive parent without requiring a new home study or additional training. The application process is similar for both kinship and nonkinship providers.

DCYF provides monthly foster maintenance payments to kinship homes pending licensing as soon as background clearances, including nationwide fingerprint checks, are received for a period not to exceed 6 months from the date of placement. If the home is not licensed within this timeframe, the foster maintenance payment may be terminated. Foster care maintenance payments for a child in care may cover the cost of providing food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to the child, reasonable travel to the child’s home for visits with family or other caregivers, and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.

Requirements for Placement of Siblings

Siblings who are placed in foster care should maintain contact with each other to have continuity in their relationships, as follows:

  • Sibling visits should be seen as part of the overall case plan
  • Sibling visits are an integral part of the assessment of family relationships and the determination of the feasibility of established goals.
  • The determination of the appropriateness of continued sibling visits is independent of the proceeding for termination of parental rights.

It is the policy of DCYF to provide the child with an out-of-home placement that is least disruptive to the child and family, including placing siblings together, unless the serious specific needs of one or more child justifies separation. This policy offers the child the most familiar and familylike setting possible, and encourages and promotes stability and permanency for the child.

Relatives Who May Adopt

Whenever a parent places his or her child for adoption with a person other than a father, brother, sister, aunt, uncle, grandparent, or stepparent, the person with whom the child has been placed shall, within 15 days of the placement, notify DCYF of the placement.

Requirements for Adoption by Relatives

The requirement for a preplacement report on the child does not apply to a stepparent adoption or the adoption of a child related to the petitioner by marriage, blood, or adoption.

Upon the filing of a petition for adoption, the court shall notify DCYF. It shall then be the duty of the department to conduct the appropriate investigation to determine whether the proposed adoptive home is a suitable home for the child. If the child was placed for adoption by a licensed child-placing agency, the court may accept the home study report of the agency as long as the study includes any criminal record of the prospective adoptive parent.

The home study report shall include a nationwide criminal records check. This requirement may, in the discretion of the court, be waived in the case of a petition for the adoption of a child where the child is the natural child of one of the parties petitioning for the adoption and resides with the petitioning parties.

 

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

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

Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts are measures taken to preserve and reunify families.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • Prior to placement of a child in foster care to prevent or eliminate the need for removing the child from the home that may include placement of the child with a relative
  • To make it possible for the child to return home safely
  • If continuation of efforts is determined to be inconsistent with the permanency plan for the child, to place the child in a timely manner and finalize a permanent placement
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if a court determines that:

  • The parent has subjected any child to conduct of a cruel and abusive nature.
  • The parent has:
    • Committed murder of another child of the parent
    • Subjected the child to aggravating circumstances, including abandonment, torture, chronic abuse, or sexual abuse
    • Committed voluntary manslaughter of another child of the parent or attempted to commit such crime
    • Committed a felony assault that results in serious bodily injury of the child or another child of the parent
  • The parent’s parental rights to a sibling of the child have been terminated involuntarily.

 

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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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

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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

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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7th Circuit

8th Circuit

9th Circuit

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

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8th Circuit

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US Supreme Court

CPS Statutes

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

 

1st Circuit

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5th Circuit

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US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

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

9th Circuit

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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

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9th Circuit

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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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