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

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

Tennessee

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ exists when a person under age 18 is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability, or physical or mental condition caused by brutality, neglect, or other actions or inactions of a parent, relative, guardian, or caregiver.

‘Severe child abuse’ means:

  • The knowing exposure of a child to, or the knowing failure to protect a child from, abuse or neglect that is likely to cause serious bodily injury or death, and the knowing use of force on a child that is likely to cause serious bodily injury
  • Specific brutality, abuse, or neglect toward a child that in the opinion of qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or retardation, or severe impairment of the child’s ability to function adequately in the child’s environment, and the knowing failure to protect a child from such conduct
  • The commission of any act towards the child prohibited by §§ 39-13-502 [aggravated rape], 39-13-504 [aggravated sexual battery], 39-13-515 [promoting prostitution], 39-13-522 [rape of a child], 39-15-302 [incest], 39-15-402 [aggravated child abuse, neglect, or endangerment], and 39-17-1005 [aggravated sexual exploitation of a minor], or the knowing failure to protect the child from the commission of any such act towards the child
  • Knowingly allowing a child to be present within a structure where the act of creating methamphetamine is occurring
Neglect

‘Dependent and neglected child’ means a child:

  • Who is without a parent, guardian, or legal custodian
  • Whose parent, by reason of cruelty, mental incapacity, immorality, or depravity, is unfit to care properly for the child
  • Who is under unlawful or improper care, supervision, custody, or restraint by any person, corporation, agency, association, institution, society, or other organization or who is unlawfully kept out of school
  • Whose parent or guardian neglects or refuses to provide necessary medical, surgical, institutional, or hospital care
  • Who, because of lack of proper supervision, is found in a place the existence of which is in violation of law
  • Who is in a condition of such want or suffering, or is under such improper guardianship or control, as to injure or endanger his or her morals or health
  • Who is suffering from abuse or neglect
  • Who has been in the care and control of one or more agencies or persons not related by blood or marriage for a continuous period of 6 months or longer in the absence of a power of attorney or court order, and that person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child
  • Who is or has been allowed, encouraged, or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing, or similar activity, and whose parent or guardian neglects or refuses to protect the child from further such activity
  • Who willfully has been left in the sole financial and physical care of a related caregiver for not less than 18 consecutive months by the child’s parent(s) or legal custodian, and the child will suffer substantial harm if removed from the continuous care of such relative
Sexual Abuse/Exploitation

‘Child sexual abuse’ means the commission of any act involving the unlawful sexual abuse, molestation, fondling, or carnal knowledge of a child under age 13 that, on or after November 1, 1989, constituted the criminal offense of:

  • Aggravated rape, sexual battery, or sexual exploitation of a minor
  • Criminal attempt for any of the offenses listed above
  • Especially aggravated sexual exploitation of a minor
  • Incest
  • Rape, sexual battery, or sexual exploitation of a minor

The term ‘child sexual abuse’ also means one or more of the following acts:

  • Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen
  • Any contact between the genitals or anal opening of one person and the mouth or tongue of another person
  • Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose
  • Intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator
  • Intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose
  • Sexual exploitation of a child, which includes allowing, encouraging, or forcing a child to solicit for or engage in prostitution or engage in sexual exploitation
Emotional Abuse

‘Mental injury’ means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the child’s ability to function within the child’s normal range of performance and behavior, with due regard to the child’s culture.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Code §§ 37-1-403; 37-1-605
A report is required when any person has knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse, or neglect or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse, or neglect.

A report is required when any person knows or has reasonable cause to suspect that a child has been sexually abused.

Persons Responsible for the Child

Responsible persons include:

  • The child’s parent or guardian
  • A person with whom the child lives
  • Any ‘other person responsible for a child’s care or welfare’ that includes, but is not limited to:
    • A legal custodian or foster parent
    • An employee of a public or private child care agency or public or private school
    • Any other person legally responsible for the child’s welfare in a residential setting
Exceptions

Child sexual abuse does not include acts intended for a valid medical purpose or acts that may reasonably be construed to be normal caregiver responsibilities or interactions with or affection for a child.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means:

  • Inflicting or attempting to inflict physical injury on an adult or minor by other than accidental means
  • Placing an adult or minor in fear of physical harm
  • Physical restraint
  • Malicious damage to the personal property of the abused party, including inflicting or attempting to inflict physical injury on any animal owned, possessed, leased, kept, or held by an adult or minor
  • Placing an adult or minor in fear of physical harm to any animal owned, possessed, leased, kept, or held by the adult or minor

‘Domestic abuse’ means committing abuse against a domestic abuse victim, as defined below.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person commits ‘domestic assault’ who commits an assault, as defined in § 39-13-101, against a domestic abuse victim.

Persons Included in the Definition

In civil and criminal law: ‘Domestic abuse victim’ means any person who falls within the following categories:

  • Adults or minors who are current or former spouses
  • Adults or minors who live together or who have lived together
  • Adults or minors who are dating or who have dated or who have or had a sexual relationship
  • Adults or minors related by blood or adoption
  • Adults or minors who are related or were formerly related by marriage
  • Adult or minor children of a person in a relationship that is described above

‘Dating’ and ‘dated’ do not include fraternization between two individuals in a business or social context.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Reports of harm and the identity of the reporter are confidential except when the juvenile court in which the investigation report is filed, in its discretion, determines the testimony of the person reporting to be material to an indictment or conviction.

All records concerning reports of child sexual abuse, including files, reports, records, communications, working papers related to investigations or providing services, videotapes, reports made to the abuse registry and to local offices of the department, and all records generated as a result of such processes and reports, shall be confidential.

Persons or Entities Allowed Access to Records

Disclosure may be made to persons and entities having need for the information, including:

  • Department employees, medical professionals, and contract or other agency employees who provide services, including those from child advocacy centers, to children and families
  • The attorney or guardian ad litem for a child who is the subject of the records
  • A law enforcement agency investigating a report of known or suspected child sexual abuse
  • The district attorney general of the judicial district in which the child resides or in which the alleged abuse occurred
  • A grand jury when it is necessary in the conduct of its official business
  • Any person engaged in bona fide research or audit purposes
  • A court official, probation and parole officer, designated employee of the Department of Correction, Board of Probation and Parole, or other similarly situated individual charged with the responsibility of preparing information to be presented in any administrative or judicial proceeding concerning any individual charged with or convicted of any offense involving child abuse or neglect or child sexual abuse
  • An attorney or next friend who is authorized to act on behalf of the child in a civil cause of action against the perpetrator
  • Members of the Tennessee Claims Commission and its staff and employees for the purpose of determining if a claim filed with the commission based on facts contained in the record constitutes a compensable criminal offense under the Criminal Injuries Compensation Act
When Public Disclosure of Records is Allowed

The department shall provide for the public disclosure of information about any case that results in a child fatality or near fatality in compliance with 42 U.S.C. § 5106a(b)(2)(A)(x). The term ‘near fatality’ means a child had a serious or critical medical condition resulting from child abuse or child sexual abuse, as reported by a physician who has examined the child subsequent to the abuse.

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

Because of the overriding public policy to encourage all persons to report the neglect, harm, or abuse of children, any person upon whom good faith immunity is conferred shall be presumed to have acted in good faith in making a report of harm.

No immunity conferred pursuant to this subsection shall attach if the person reporting the harm perpetrated or inflicted the abuse or caused the neglect.

A person furnishing a report, information, or records as required, requested, or authorized under this part shall have the same immunity and the same scope of immunity with respect to testimony that person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred upon the person for making the report of harm by this subsection.

If the person furnishing a report, information, or records during the normal course of the person’s duties as required, authorized, or requested under this part is different from the person originally reporting the harm, then the person furnishing the report, information, or records shall have the same immunity with respect to testimony the person may be required to give or may give in any judicial or administrative proceeding or in any communications with the department or any law enforcement official as is otherwise conferred upon the person who made the original report of harm by this subsection.

If a health-care provider makes a report of harm as required by § 37-1-403, and if the report arises from an examination of the child performed by the health-care provider in the course of rendering professional care or treatment of the child, or if the health-care provider, who is highly qualified by experience in the field of child abuse and neglect as evidenced by special training or credentialing, renders a second opinion at the request of the department or any law enforcement agency, whether or not the health-care provider has examined the child, rendered care or treatment, or made the report of harm, then the health-care provider shall not be liable in any civil or criminal action that is based solely upon:

  • The health-care provider’s decision to report what the provider believed to be harm
  • The health-care provider’s belief that reporting the harm was required by law
  • The fact that a report of harm was made
  • The fact that the second opinion was requested and provided

Nothing in this subsection shall be construed to confer any immunity upon a health-care provider for a criminal or civil action arising out of the treatment of the child about whom the report of harm was made.

If absolute immunity is not conferred upon a person pursuant to the subdivision above, and if, acting in good faith, the person makes a report of harm, as required by § 37-1-403, then the person shall not be liable in any civil or criminal action that is based solely upon:

  • The person’s decision to report what the person believed to be harm
  • The person’s belief that reporting the harm was required by law
  • The fact that a report of harm was made

 

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 knowledge of or is called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability, or physical or mental condition shall report such harm immediately if the harm is of such a nature as to reasonably indicate that it has been caused by brutality, abuse, or neglect, or that, on the basis of available information, reasonably appears to have been caused by brutality, abuse, or neglect.

Any person who knows or has reasonable cause to suspect that a child has been sexually abused shall report such knowledge or suspicion to the department.

Content of Reports

To the extent known by the reporter, the report shall include:

  • The name, address, telephone number, and age of the child
  • The name, address, and telephone number of the person responsible for the care of the child
  • The facts requiring the report
  • Any other pertinent information
Reporting Suspicious Deaths

A mandated reporter who has reasonable cause to suspect that a child has died as a result of child abuse or neglect or sexual abuse shall report such suspicion to the medical examiner. The medical examiner shall accept the report for investigation and shall report the medical examiner’s findings, in writing, to the local law enforcement agency, the appropriate district attorney general, and the department.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Any person with knowledge of the type of harm described above shall report it, by telephone or otherwise, to:

  • The judge having juvenile jurisdiction over the child
  • The Department of Children’s Services, either by contacting a local representative of the department or by utilizing the department’s centralized intake procedure
  • The sheriff of the county where the child resides
  • The chief law enforcement official of the municipality where the child resides

Every physician who makes a diagnosis of any sexually transmitted disease in a child who is age 13 or younger shall report the case immediately, in writing, to the Department of Health. If sexual abuse is suspected, the Department of Health will report the case to the Department of Children’s Services.

Each report of known or suspected child sexual abuse shall be made immediately to the local office of the department responsible for the investigation of reports, the judge having juvenile jurisdiction, or to the office of the sheriff or the chief law enforcement official of the municipality where the child resides.

Initial Screening Decisions

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

Agency Conducting the Assessment/Investigation

The county office of the department shall investigate an oral or written report of harm. If the report of child abuse alleges physical abuse, it shall be in the best interests of the child that the child be referred to a child advocacy center or that the investigation be conducted by a child protective services investigator who is adequately trained in investigating physical abuse reports. Under no circumstances shall the investigation be performed by a probation officer previously assigned to the child.

In cases involving child sexual abuse, the investigation shall be conducted by a child protective investigation team. Each team shall be composed of one person from the department, one representative from the office of the district attorney general, one juvenile court officer or investigator from a court of competent jurisdiction, and one properly trained law enforcement officer with countywide jurisdiction from the county where the child resides or where the alleged offense occurred. The team also may include a representative from one of the mental health disciplines. It is in the best interests of the child that, whenever possible, an initial investigation shall not be commenced unless all four disciplines are represented. An initial investigation may, however, be commenced if at least two of the team members are present at the initial investigation.

It is the intent of the general assembly that the child protective investigations be conducted by the team members in a manner that not only protects the child but that also preserves any evidence for future criminal prosecutions.

Assessment/Investigation Procedures

All representatives of the child protective services agency shall, at the initial time of contact with the individual who is subject to an investigation, advise the individual of the complaints or allegations made against the individual consistent with laws protecting the rights of the informant.

The investigation shall include:

  • The nature, extent, and cause of the harm, including a determination of whether there exists a threat of harm, and the nature and extent of any present or prior injuries or abuse
  • The identity of the person responsible for it
  • The names and conditions of the other children in the home
  • An evaluation of the parents or persons responsible for the care of the child, the home environment, and the relationship of each child to the parents or persons responsible for such child’s care
  • The identity of any other persons in the same household
  • The identity of any other children in the care of any adult residing in the household
  • All other pertinent data

The investigation shall include a visit to the child’s home; an interview with and physical observation of the child; and interviews with the parents, other custodians of the child, and any other persons in the child’s home. If the investigator deems it necessary, the investigation also shall include medical, psychological, or psychiatric examinations of the child and any other children in the child’s home or under the care of any person alleged to have permitted or caused abuse, neglect, or sexual abuse to the child.

The investigator shall interview the child outside the presence of the parents or other persons allegedly responsible for the harm and, wherever possible, shall interview the child in a neutral setting other than the location where the alleged abuse occurred.

Timeframes for Completing Investigations

The department shall be capable of receiving and investigating reports of child abuse 24 hours a day, 7 days a week. The county office shall make a thorough investigation promptly after receiving either an oral or written report of harm.

If it appears that the immediate safety or well-being of a child is endangered, that the family may flee or the child will be unavailable, or that the facts otherwise warrant, the department shall commence an investigation immediately, regardless of the time of day or night.

For each child sexual abuse report it receives, the department shall immediately notify the child protection investigation team, which shall commence an on-site child protective investigation.

No later than 60 days after receiving the initial report, the department or team in cases of child sexual abuse or the department in all other cases shall determine whether the reported abuse was indicated or unfounded and report its findings to the department’s abuse registry.

Classification of Reports

The investigation shall determine whether the reported abuse was indicated or unfounded.

In regulation: ‘Indicated’ means the classification assigned to an individual found to be a perpetrator of abuse, severe child abuse, child sexual abuse, or neglect as the result of an investigation of a report of abuse. A report made against an alleged perpetrator shall be classified as ‘indicated’ if the preponderance of the evidence, in light of the entire record, proves that the individual committed abuse, severe child abuse, child sexual abuse, or neglect.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Persons required to report include:

  • Physicians, osteopaths, medical examiners, chiropractors, nurses, hospital personnel, or other health or mental health professionals
  • Teachers, other school officials or personnel, daycare center workers
  • Other professional child care, foster care, residential, or institutional workers
  • Social workers
  • Practitioners who rely solely on spiritual means for healing
  • Judges or law enforcement officers
  • Neighbors, relatives, or friends
  • Authority figures at community facilities, including any facility used for recreation or social assemblies or for educational, religious, social, health, or welfare purposes, including, but not limited to, facilities operated by schools, the Boy or Girl Scouts, the YMCA or YWCA, the Boys and Girls Club, or church or religious organizations
  • Other persons
Reporting by Other Persons

Any person who has knowledge that a child has been harmed by abuse or neglect must report.

Institutional Responsibility to Report

Nothing in this section shall be construed to prohibit any hospital, clinic, school, or other organization responsible for the care of children from developing a specific procedure for internally tracking, reporting, or otherwise monitoring a report made by a member of the organization’s staff, including requiring a member of the organization’s staff who makes a report to provide a copy of or notice concerning the report to the organization, so long as the procedure does not inhibit, interfere with, or otherwise affect the duty of a person to make a report as required by law.

Nothing in this section shall prevent staff of a hospital or clinic from gathering sufficient information, as determined by the hospital or clinic, in order to make an appropriate medical diagnosis or to provide and document care that is medically indicated and is needed to determine whether to report an incident as defined in this part. Those activities shall not interfere with nor serve as a substitute for any investigation by law enforcement officials or the department. However, if any hospital, clinic, school, or other organization responsible for the care of children develops a procedure for internally tracking, reporting, or otherwise monitoring a report, the identity of the person who made a report of harm shall be kept confidential.

Standards for Making a Report

A report is required when:

  • A person has knowledge that a child has been harmed by abuse or neglect.
  • A person is called upon to render aid to any child who is suffering from an injury that reasonably appears to have been caused by abuse.
  • A person knows or has reasonable cause to suspect that a child has been sexually abused.
  • A physician diagnoses or treats any sexually transmitted disease in a child age 13 or younger or diagnoses pregnancy in an unemancipated minor.

Any school official, personnel, employee, or member of the board of education who is aware of a report or investigation of employee misconduct on the part of any employee of the school system that in any way involves known or alleged child abuse, including, but not limited to, child physical or sexual abuse or neglect, shall immediately upon knowledge of such information notify the Department of Children’s Services or law enforcement official of the abuse or alleged abuse.

Privileged Communications

The following privileges may not be claimed:

  • Husband-wife
  • Psychiatrist-patient or psychologist-patient
Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Except as may be ordered by the juvenile court, the name of any person reporting child abuse or neglect shall not be released to any person, other than employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriate district attorney general upon subpoena of the Tennessee Bureau of Investigation, without the written consent of the person reporting.

The reporter’s identity shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by order of any court. This shall not prohibit the issuance of a subpoena to a person reporting child abuse when deemed necessary by the district attorney general or the department to protect a child who is the subject of a report, provided that the fact that the person made the report is not disclosed.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Severe child abuse’ means knowingly allowing a child to be present within a structure where the act of creating methamphetamine is occurring.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In any proceeding resulting from a report of harm or an investigation report under §§ 37-1-401 to 37-1-411, the court shall appoint a guardian ad litem (GAL) for the child who was the subject of the report. A party to the proceeding or the party’s employee or representative shall not be appointed. A court-appointed special advocate (CASA) may also be appointed.

A GAL shall be appointed to represent the child in any child sexual abuse proceeding.

The Use of Court-Appointed Special Advocates (CASAs)

The court may also appoint a nonlawyer special advocate trained in accordance with that role and in accordance with the standards of the Tennessee Court Appointed Special Advocates Association to act in the best interests of a child before, during, and after court proceedings.

The CASA shall conduct such investigation and make such reports and recommendations pertaining to the welfare of a child as the court may order or direct.

Qualifications/Training

Any GAL appointed by the court shall receive training appropriate to that role prior to such appointment. The training shall include, but is not limited to, training in early childhood, child, and adolescent development provided by a qualified professional.

Specific Duties

A GAL is a responsible adult who is appointed by the court to represent the best interests of a child in a proceeding as provided for by law, who shall be a party to any judicial proceeding as a representative of the child, and who shall serve until discharged by the court.

In court rules: The GAL must investigate fully all of the circumstances relevant to the child’s position, marshal every reasonable argument that could be made in favor of the child’s position, identify all the factual support for the child’s position, discuss fully with the child and make sure that the child understands the different options or positions that might be available, including the potential benefits and risks of each option or position, and the likelihood of prevailing on each option or position. In the event that the GAL disagrees with the position the child urges the GAL to take, the GAL may request that the court appoint another lawyer to serve as the GAL or advocate for both positions simultaneously.

How the Representative Is Compensated

The court shall order the perpetrator in all cases, whether such person is a parent or other person, to fully reimburse the court for the cost of provision of GAL services. Reimbursement to the individual providing such services shall not be contingent upon successful collection by the court from the parent or parents.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Within 30 days of the date of foster care placement, an agency shall prepare a plan of care or a permanency plan for each child in its foster care.

Who May Participate in the Case Planning Process

The agency shall prepare the plan. The plan shall be presented to the parent or guardian and approved by the court.

Contents of a Case Plan

The plan shall include a goal for each child of:

  • Return of the child to his or her parent
  • Permanent placement of the child with a fit and willing relative or relatives of the child
  • Adoption, giving appropriate consideration to § 36-1-115(g), when applicable
  • Permanent guardianship
  • A planned permanent living arrangement

The permanency plan for any child in foster care shall include a statement of responsibilities between the parents, the agency, and the caseworker of such agency. Such statements shall include the responsibilities of each party in specific terms and shall be reasonably related to the achievement of the goal.

In cases involving child abuse or child neglect, with such child being placed in foster care, the statement of responsibilities shall stipulate that the abusing or neglecting parent shall receive appropriate rehabilitative assistance through mental health consultation if so ordered by the court.

The plan for a child who remains in foster care for 1 year may be modified to a long-term agreement between a foster parent and the agency charged with the care and custody of the child. Such agreements with foster parents shall include:

  • Appropriate arrangements for the child
  • Procedures for the termination of the agreement by either party when in the best interests of the child

The statement of responsibilities on a permanency plan that is ordered by the court shall empower the State agency to select any specific residential or treatment placement or programs for the child according to the determination made by the agency, its employees, agents, or contractors.

 

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 preserve and reunify the family].

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A review hearing shall be held within 90 days of placement and every 6 months thereafter.

A permanency hearing shall be held:

  • Within 12 months of placement and every 12 months thereafter
  • Within 30 days of a finding that reasonable efforts to reunify are not required
  • For a child who is age 17 or older, 3 months prior to his or her planned release to independent living
Persons Entitled to Attend Hearings

Notice of the review hearing and the right to attend and participate in the review shall be provided to:

  • The child’s parent(s) whose rights have not been terminated or surrendered
  • The parent’s attorney
  • The guardian ad litem and/or attorney for the child
  • Foster parents, prospective adoptive parents, or relative providing care for the child
  • The child who is a party to the proceeding

The child shall be present for the permanency hearing. The only exceptions to the child’s mandatory attendance shall be a child who is either under a doctor’s care preventing the child from attending or is placed outside the State. In such event, the court shall require the guardian ad litem, case manager for the Department of Children’s Services, or other case manager of the child to attest that the child, if age appropriate, participated in the development of the permanency plan or has been counseled on the provisions of the permanency plan.

Determinations Made at Hearings

At the review hearing, the court or board shall review the safety, permanency, and well-being of the child by assessing the necessity and appropriateness of continued foster care placement, the appropriateness of services for the child, the compliance of all parties to the statement of responsibilities, and the extent of progress in alleviating or mitigating the causes necessitating placement in foster care and in achieving the goals contained in the permanency plan. After this assessment, the court or board will project a likely date on which the goal of the plan will be achieved.

At the permanency hearing, the court shall confer with the child in an age-appropriate manner regarding the child’s views on the provisions of the permanency plan. For all children, absent or present, evidence shall be presented as to the child’s progress and needed services.

The purpose of the permanency hearings shall be to:

  • Review the permanency plan and goals for the child
  • Address which goals continue to be appropriate for the child in order to achieve permanent placement and include a timeline for achieving each goal
  • Determine the extent of compliance of all parties with the terms of the permanency plan and the extent of progress in achieving the goals of the plan

In the case of a child who has reached age 16, the court shall review and ratify an independent living plan for the child. At the hearing for a child who has reached age 17, the court shall ensure that the child has notice of and understands the child’s opportunity to receive, if eligible, all available voluntary postcustody services from the department by having the department present evidence regarding services that are available to the child beginning at age 18.

Permanency Options

Possible permanency goals include:

  • Return of the child to his or her parent
  • Permanent placement with a fit and willing relative
  • Adoption
  • Permanent guardianship
  • Another planned permanent living arrangement

The permanency plan shall not require the parent to obtain employment if the parent has sufficient resources from other means to care for the child, and the plan shall not require the parent to provide the child with the child’s own bedroom unless specific safety or medical reasons exist that would make bedroom placement of the child with another child unsafe.

Placement in another planned permanent living arrangement shall be appropriate only in cases where the State agency has documented a compelling reason for determining that the other goals would not be in the best interests of the child because of the child’s special needs or circumstances.

 

Determining the Best Interests of the Child

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Current Through March 2016

In all cases, when the best interests of the child and those of the adults are in conflict, such conflict shall always be resolved to favor the rights and the best interests of the child, which interests are hereby recognized as constitutionally protected, and, to that end, this part shall be liberally construed.

In determining whether termination of parental or guardianship rights is in the best interests of the child pursuant to this part, the court shall consider, but is not limited to, the following:

  • Whether the parent or guardian has made such adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interests to be in the home of the parent or guardian
  • Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible
  • Whether the parent or guardian has maintained regular visitation or other contact with the child
  • Whether a meaningful relationship has otherwise been established between the parent or guardian and the child
  • The effect a change of caregivers and physical environment is likely to have on the child’s emotional, psychological, and medical condition
  • Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality; physical, sexual, emotional, or psychological abuse; or neglect toward the child or another child or adult in the family or household
  • Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner
  • Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child
  • Whether the parent or guardian has paid child support consistent with the child support guidelines

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Termination of parental rights must be based upon:

  • A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established.
  • The termination of the parent’s rights is in the best interests of the child.

Initiation of termination of parental rights may be based upon any of the following grounds:

  • Abandonment by the parent has occurred.
  • There has been substantial noncompliance by the parent with the permanency plan or a plan of care.
  • The child has been removed from the home of the parent for 6 months and:
    • The conditions that led to the child’s removal, that in all reasonable probability would cause the child to be subjected to further abuse or neglect, still persist.
    • There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned home in the near future.
    • The continuation of the parent-child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home.
  • The parent has been found to have committed severe child abuse against the child who is the subject of the petition or against any sibling, half-sibling, or any other child residing temporarily or permanently in the home of the parent.
  • The parent has been sentenced to more than 2 years’ imprisonment for conduct against the child who is the subject of the petition, or for conduct against any sibling, half-sibling, or any other child residing temporarily or permanently in the home of the parent.
  • The parent has been incarcerated for 10 or more years, and the child is under age 8 at the time.
  • The parent has been convicted of the intentional and wrongful death of the child’s other parent or legal guardian.
  • The parent has been found to be mentally incompetent to provide for the further care and supervision of the child.
  • The parent has failed, without good cause or excuse, to pay a reasonable share of prenatal, natal, and postnatal expenses involving the birth of the child.
  • The parent has failed, without good cause or excuse, to support the child in accordance with the child support guidelines.
  • The parent has failed to seek reasonable visitation with the child, and if visitation has been granted, has failed to visit altogether, or has engaged in only token visitation.
  • The parent has failed to manifest an ability and willingness to assume legal and physical custody of the child.
  • Placing custody of the child in the parent’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.
  • A birth father has failed to file a petition to establish paternity of the child within 30 days after notice of alleged paternity by the child’s mother.
  • The parent has been found to have committed severe child sexual abuse.
  • The parent was convicted of rape from which the child was conceived.

The Department of Children’s Services shall file a petition to terminate the parental rights of the child’s parents under the following circumstances:

  • The child has been in foster care for 15 of the most recent 22 months.
  • A court of competent jurisdiction has determined a child to be an abandoned infant.
  • The parent has:
    • Committed murder or manslaughter of any sibling or half-sibling of the child
    • Aided, abetted, attempted, conspired, or solicited to commit such murder or a voluntary manslaughter
    • Committed a felony assault that has resulted in serious bodily injury or severe child abuse to the child or any sibling or half-sibling
  • A juvenile court has made a finding of severe child abuse.
Circumstances That Are Exceptions to Termination of Parental Rights

At the option of the department, the department may determine that a petition to terminate the parental rights of the child’s parents shall not be filed if one of the following exists:

  • The child is being cared for by a relative.
  • The department has documented in the permanency plan a compelling reason for determining that filing such a petition would not be in the best interests of the child.
  • The department has not made reasonable efforts to provide to the family of the child, consistent with the time period in the department permanency plan, such services as the department deems necessary for the safe return of the child to the child’s home.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ or ‘coguardian’ means a person or persons appointed by the court to provide partial or full supervision, protection, and assistance of the person or property, or both, of a minor.

A ‘custodian’ is a person, other than a parent or legal guardian, who stands in loco parentis to the child or a person to whom temporary legal custody of the child has been given by order of a court.

The term ‘custody’ means control of the actual physical care of the child and includes the right and responsibility to provide for the physical, mental, moral, and emotional well-being of the child. ‘Custody,’ as herein defined, relates to those rights and responsibilities as exercised either by the parents or by a person or organization granted custody by a court of competent jurisdiction. ‘Custody’ shall not be construed as the termination of parental rights and does not exist by virtue of mere physical possession of the child.

In policy: For purposes of the subsidized guardianship program, a guardian must meet the definition for ‘relative.’ A ‘relative’ is the legal guardian of a child with whom the child is related to by blood, marriage, or adoption or with whom the child had a significant relationship that pre-existed placement, such as a godparent, friend, neighbor, church member, or teacher.

Purpose of Guardianship

The court may issue a permanent guardianship order only if the court finds that:

  • The child has been previously adjudicated dependent and neglected.
  • The child has been living with the proposed permanent guardian for at least 6 months.
  • The permanent guardianship is in the child’s best interests.
  • Reunification of the parent and child is not in the child’s best interests.
A Guardian’s Rights and Responsibilities

The permanent guardian shall maintain physical custody of the child and shall have the following rights and responsibilities concerning the child:

  • To protect, nurture, discipline, and educate the child
  • To provide food, clothing, shelter, and education as required by law, and necessary health care, including medical, dental, and mental health, for the child
  • To consent to health care, without liability by reason of the consent for injury to the child resulting from the negligence or acts of third persons, unless a parent would have been liable in the circumstances
  • To authorize a release of health care and educational information
  • To authorize a release of information when consent of a parent is required by law, regulation, or policy
  • To consent to social and school activities of the child
  • To consent to military enlistment or marriage
  • To obtain representation for the child in legal actions
  • To determine the nature and extent of the child’s contact with other persons
  • To make decisions regarding travel
  • To manage the child’s income and assets

The permanent guardian is not liable to third persons by reason of the relationship for acts of the child.

Qualifying the Guardian

The court may consider any adult, including a relative, foster parent, or another adult with a significant relationship with the child as a permanent guardian. If the child is in the custody of the Department of Children’s Services, the court shall seek the department’s opinion on both the proposed permanent guardianship and the proposed permanent guardian. An agency or institution may not be a permanent guardian.

The court may issue a permanent guardianship order only if the court finds that the proposed permanent guardian:

  • Is emotionally, mentally, physically, and financially suitable to become the permanent guardian
  • Is suitable and able to provide a safe and permanent home for the child
  • Has expressly committed to remain the permanent guardian for the duration of the child’s minority
  • Has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian, including an understanding of any potential resulting loss of State or Federal benefits or other assistance
  • Will comply with all terms of any court order to provide the child’s parent with visitation, contact, or information
Procedures for Establishing Guardianship

The juvenile courts of Tennessee are empowered to appoint an individual as permanent guardian; provided, that the individual qualifies under the provisions of this part. The court may establish a permanent guardianship at a permanency planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding or a delinquency proceeding.

If the child is age 12 or older, the court shall consider the reasonable preference of the child. The court may hear the preference of a younger child. The preferences of older children should normally be given greater weight than those of younger children.

The parent may voluntarily consent to the permanent guardianship and shall demonstrate an understanding of the implications and obligations of such consent prior to the court entering an order establishing a permanent guardianship in accordance with the provisions of this part.

In determining whether it is in the child’s best interests that a permanent guardian be designated, in addition to any other evidence the court finds relevant, the court shall consider each of the following factors:

  • The child’s need for continuity of care and caregivers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages
  • The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child
  • The quality of the interaction and interrelationship of the child with the child’s parent, siblings, relatives, and caregivers, including the proposed permanent guardian
Contents of a Guardianship Order

Entry of a permanent guardianship order does not terminate the parent and child relationship, including:

  • The right of the child to inherit from the child’s parents
  • The parents’ right to visit or contact the child, as defined by the court
  • The parents’ right to consent to the child’s adoption
  • The parents’ responsibility to provide financial, medical, and other support for the child

The permanent guardianship order shall specify the frequency and nature of visitation or contact or the sharing of information with parents and the child. The court shall issue an order regarding visitation, contact, and the sharing of information based on the best interests of the child. The order may restrict or prohibit visitation, contact, and the sharing of information. The order may incorporate an agreement reached among the parties.

The court shall retain jurisdiction to enforce, modify, or terminate a permanent guardianship order until the child reaches age 18, or age 19 for children adjudicated delinquent.

Modification/Revocation of Guardianship

A modification or termination of the permanent guardianship may be requested by the permanent guardian, by the child if the child is age 16 or older, by the parent, or by the State. When the permanent guardianship is terminated by a court order, the court shall make further provisions for the permanent guardianship or custody of the child, based upon the best interests of the child.

An order for modification or termination of the permanent guardianship shall be based on a finding, by a preponderance of evidence, that there has been a substantial change in material circumstances. In making this determination, the court may consider whether the child’s parent is currently able and willing to care for the child or that the permanent guardian is unable to continue to care for the child.

In determining whether it is in the child’s best interests that the permanent guardianship be modified or terminated, the court shall consider the following factors:

  • The child’s need for continuity of care and caregivers
  • The physical, mental, and emotional health of all individuals involved, especially the physical, mental, and emotional needs of the child
  • The quality of the interaction and interrelationship of the child with the child’s parent, siblings, relatives, and caregivers, including the proposed permanent guardian

In the event that it is necessary to appoint a successor permanent guardian, appropriate parties may be considered by the court, with the parent having no greater priority than a third party. The court may also consider, where appropriate, return of custody to the parent.

Eligibility for Guardianship Subsidy

For a child to be eligible for subsidized guardianship, the child must meet all of the following criteria:

  • The department has determined that that the child was in custody and/or guardianship of the department immediately prior to the initiation of permanent guardianship proceedings.
  • The custody and/or guardianship court order must reflect that the child has been removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination.
  • The child must be younger than age 18.
  • The department has determined that the guardian has met the definition for ‘relative’ for the subsidized permanent guardianship program.
  • The prospective guardian must complete all requirements for approval as a resource home and be fully approved for 6 months.
  • The child must be placed in the prospective guardian’s home for 6 consecutive months at the time that the prospective guardian’s home is fully approved.
  • The department has determined that being returned home or adopted are not appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the prospective guardian.
  • The guardian has a strong commitment to caring permanently for the child.
  • A child who is age 12 or older must be consulted regarding the permanent subsidized guardianship arrangement.

Note: A ‘strong attachment’ is defined as a relationship that existed between the potential guardian and the child or family prior to placement.

If a child is eligible for title IV-E-funded guardianship assistance but has a sibling who is not eligible, the child and any of the child’s siblings may be placed in the same relative guardianship arrangement if the department and the relative agree that the arrangement is appropriate for the sibling, and title IV-E-funded relative guardianship assistance may be paid on behalf of each sibling.

Links to Agency Policies

Tennessee Department of Children’s Services, Administrative Policies and Procedures, § 16.39:

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

Whenever a child is removed from his or her home and placed in the custody of the Department of Children’s Services, the department shall seek to place the child with a fit and willing relative if such placement provides for the safety and best interests of the child. Whenever a return of a child to his or her parent is determined not to be in the best interests of the child, then the relative with whom the child has been placed shall be given priority for permanent placement or adoption of the child prior to pursuing adoptive placement of such child with a nonrelative.

When a child has been removed from his or her home and is in the care, custody, or guardianship of the department, the department shall attempt to place the child with a relative for kinship foster care.

Relatives within the first, second, or third degree to the parent or stepparent of the child through blood, marriage, or adoption may be eligible for approval.

Requirements for Placement with Relatives

If the relative is approved to provide foster care services, he or she may receive payment for the full foster care rate for the care of the child and any other benefits that might be available to foster parents, whether in money or in services.

The department shall establish, in accordance with the provisions of this section, eligibility standards for becoming a kinship foster parent. These standards include:

  • The kinship foster parent must be age 21 or older, except that if the spouse or partner of the relative is age 21 or older and living in the home, and the relative is between age 18 and 21, the department may waive the age requirement.
  • A person may become a kinship foster parent only upon the completion of an investigation to ascertain if there is a State or Federal record of criminal history for the prospective kinship foster parent or any other adult residing in the prospective parent’s home.
  • A prospective kinship foster parent shall supply fingerprint samples and submit to a criminal history records check to be conducted by the Tennessee Bureau of Investigation and the Federal Bureau of Investigation.
Requirements for Placement of Siblings

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

Relatives Who May Adopt

A person may seek to adopt a child who is related to him or her. The term ‘related’ means grandparents or any degree of great-grandparents, aunts or uncles or any degree of great-aunts or great-uncles, stepparent, cousins of the first degree, any siblings of the whole or half degree, or any spouse of the above listed relatives.

If the child becomes available for adoption while in foster care, the foster parents shall be given first preference to adopt the child if the child has resided in the foster home for 12 or more consecutive months immediately preceding the filing of an adoption petition.

Requirements for Adoption by Relatives

In the case of an adoption by relatives, the requirement to have been a resident of the State for at least 6 months shall not apply if the petitioner is an actual resident of this State at the time the petition is filed.

In becoming adoptive parents, the foster parents shall meet all requirements otherwise imposed on persons seeking to adopt children in the custody of the department.

The court may waive the requirement for postplacement supervision when the child is to be adopted by related persons.

 

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of reasonable care and diligence by the Department of Children’s Services to provide services related to meeting the needs of the child and the family.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent the need for removal of the child from the child’s family
  • To make it possible for the child to return home
  • To place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child if continuation of reasonable efforts is determined to be inconsistent with the permanency plan for the child
When Reasonable Efforts Are NOT Required

Reasonable efforts shall not be required if a court has determined that:

  • The parent has subjected the child or any child in the household to aggravated circumstances, including:
    • Abandonment or abandonment of an infant
    • Aggravated assault
    • Aggravated kidnapping or especially aggravated kidnapping
    • Aggravated child abuse and neglect
    • Aggravated sexual exploitation of a minor or especially aggravated sexual exploitation of a minor
    • Aggravated rape, rape, rape of a child, or incest
    • Severe child abuse, as defined in § 37-1-102
  • The parent has committed murder or manslaughter of any sibling or other child residing in the household, or aided, abetted, or attempted such crime.
  • The parent has committed a felony assault that resulted in serious bodily injury to any child residing in the household.
  • The parental rights of the parent to another child have been terminated involuntarily.

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

The parent or parents of a minor child may delegate to any adult person residing in this State temporary care giving authority regarding the child when hardship prevents the parent or parents from caring for the child.

How to Establish a Standby Guardian

This authority may be delegated without the approval of a court by executing in writing a power of attorney for care of a minor child on a form provided by the Department of Children’s Services. Hardships may include but are not limited to:

  • The serious illness or incarceration of a parent or legal guardian
  • The physical or mental condition of the parent or legal guardian or the child is such that care and supervision of the child cannot be provided
  • The loss or uninhabitability of the child’s home as the result of a natural disaster

The power of attorney for care of the minor child shall be signed by the parent and acknowledged before a notary public or two witnesses who shall sign and date their signatures in each other’s presence.

The instrument providing for the power of attorney shall be executed by both parents, if both parents are living and have legal custody of the minor child, and shall state with specificity the details of the hardship preventing the parent from caring for the child.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation: Ann. Code § 34-6-303
If only one parent has legal custody of the minor child, then that parent shall execute the instrument. The other parent must consent in writing to the appointment in the instrument, or the executing parent shall explain in the instrument why the consent cannot be obtained. If both parents do not execute the affidavit, then the executing parent shall send a copy of the instrument to the other parent by certified mail, return receipt requested, at the last known address of the other parent.

Authority Relationship of the Parent and the Standby

Through the power of attorney for care of a minor child, the parent may authorize the caregiver to perform the following functions without limitation:

  • Enroll the child in school and extracurricular activities
  • Obtain medical, dental, and mental health treatment for the child
  • Provide for the child’s food, lodging, housing, recreation, and travel

Nothing in this section shall be construed to limit the power of the parent to grant additional powers to the caregiver.

Except where limited by Federal law, the caregiver shall be assigned the rights, duties, and responsibilities that would otherwise be assigned to the parent, legal guardian, or legal custodian.

The power of attorney does not provide legal custody to the caregiver. If at any time the parent or legal guardian disagrees with the decision of the caregiver or chooses to make any health-care or educational decisions for the child, the parent must revoke the power of attorney and provide the health-care provider and local education agency either written documentation of the revocation or a court order appointing a legal guardian or legal custodian.

The decision of a caregiver to consent to or to refuse medical, dental, or mental health care for a child shall be superseded by any contravening decision of the parent having legal custody of the child as long as the decision of the parent does not jeopardize the life, health, or safety of the child. If at any time the parent or legal guardian disagrees with the decision of the caregiver or chooses to make any health-care decisions for the child, then the parent must revoke the power of attorney for care of a minor child and provide the health-care provider written documentation of the revocation.

Withdrawing Guardianship

The power of attorney for care of a minor child may be terminated by an instrument in writing signed by either parent with legal custody. The power of attorney for care of a minor child may also be terminated by any order of a court of competent jurisdiction that appoints a legal guardian or legal custodian.

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

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US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

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

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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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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6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

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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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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

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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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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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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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8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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7th 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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