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

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

Texas

 

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’ means the following acts or omissions by a person:

  • Physical injury that results in substantial harm to the child or the genuine threat of substantial harm from physical injury to the child, including an injury that is inconsistent with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or conservator that does not expose the child to a substantial risk of harm
  • Failure to make a reasonable effort to prevent an action by another person that results in physical injury or substantial harm to the child
  • The current use by a person of a controlled substance in a manner or to the extent that the use results in physical, mental, or emotional injury to a child
  • Causing, expressly permitting, or encouraging a child to use a controlled substance
Neglect

‘Neglect’ means the following acts or omissions by the person responsible for a child’s care, custody, or welfare:

  • Placing a child in, or failing to remove a child from, a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child
  • Failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury, or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child
  • Failing to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability, unless relief services had been offered and refused
  • Placing a child in, or failing to remove the child from, a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child
  • Placing a child in, or failing to remove the child from, a situation in which the child would be exposed to acts or omissions that constitute sexual abuse
  • Permitting the child to return to the child’s home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away
Sexual Abuse/Exploitation

The term ‘abuse’ includes the following acts or omissions by a person:

  • Sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child (§ 21.02, Penal Code), indecency with a child (§ 21.11, Penal Code), sexual assault (§ 22.011, Penal Code), or aggravated sexual assault (§ 22.021, Penal Code)
  • Failure to make a reasonable effort to prevent sexual conduct harmful to a child
  • Compelling or encouraging the child to engage in sexual conduct (as defined by § 43.01, Penal Code), including conduct that constitutes an offense of trafficking of persons (§ 20A.02(a)(7) or (8), Penal Code), prostitution (§ 43.02(b), Penal Code), or compelling prostitution (§ 43.05(a)(2), Penal Code)
  • Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by § 43.21, Penal Code) or pornographic
  • Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child (as defined by § 43.25, Penal Code)
  • Knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under § 20A.02(a)(5), (6), (7), or (8), Penal Code, or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of those sections
Emotional Abuse

The term ‘abuse’ includes the following acts or omissions by a person:

  • Mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning
  • Causing or permitting a child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning

‘Severe emotional disturbance’ means a mental, behavioral, or emotional disorder of sufficient duration to result in functional impairment that substantially interferes with or limits a person’s role or ability to function in family, school, or community activities.

Abandonment

Citation: Fam. Code § 261.001
The term ‘neglect’ includes leaving a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of intent not to return by a parent, guardian, or conservator of the child.

Standards for Reporting

Citation: Fam. Code § 261.101
A report is required when there is cause to believe that the child’s physical or mental health has been adversely affected by abuse or neglect.

Persons Responsible for the Child

‘Person responsible for a child’s care, custody, or welfare’ means a person who traditionally is responsible for a child’s care, custody, or welfare, including:

  • A parent, guardian, conservator, or foster parent of the child
  • A member of the child’s family or household, meaning persons living together in the same dwelling, without regard to whether they are related to each other, and includes persons who previously lived in the household
  • A person with whom the child’s parent cohabits
  • School personnel or a volunteer at the child’s school
  • Personnel or a volunteer at a public or private child care facility that provides services for the child or at a public or private residential institution or facility where the child resides
Exceptions

Abuse does not include reasonable discipline by a parent that does not expose the child to substantial risk of harm.

‘Neglect’ does not include the refusal by a person responsible for a child’s care, custody, or welfare to permit the child to remain in or return to the child’s home resulting in the placement of the child in the conservatorship of the department if:

  • The child has a severe emotional disturbance.
  • The person’s refusal is based solely on the person’s inability to obtain mental health services necessary to protect the safety and well-being of the child.
  • The person has exhausted all reasonable means available to the person to obtain the needed mental health services.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Family violence’ means:

  • An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault, or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself
  • Abuse, as that term is defined by § 261.001, by a member of a family or household toward a child of the family or household
  • Dating violence

‘Dating violence’ means an act, other than a defensive measure to protect oneself, by an actor that:

  • Is committed against a victim with whom the actor has or has had a dating relationship
  • Is committed against a victim who is married to or in a dating relationship with an individual with whom the actor is or has been married or in a dating relationship
  • Is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault
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 an offense if, in violation of a condition of bond set in a family violence case and related to the safety of a victim or the safety of the community; an order issued under Article 17.292, Code of Criminal Procedure; an order issued under Section 6.504, Family Code; Chapter 83, Family Code, if the temporary ex parte order has been served on the person; or Chapter 85, Family Code; or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally:

  • Commits family violence or an act in furtherance of an offense under §§ 22.011, 22.021, or 42.072
  • Communicates:
    • Directly with a protected individual or a member of the family or household in a threatening or harassing manner
    • A threat through any person to a protected individual or a member of the family or household
    • In any manner with the protected individual or a member of the family or household except through the person’s attorney or a person appointed by the court, if the violation is of an order described by this subsection, and the order prohibits any communication with a protected individual or a member of the family or household
  • Goes to or near any of the following places as specifically described in the order or condition of bond:
    • The residence or place of employment or business of a protected individual or a member of the family or household
    • Any child care facility, residence, or school where a child protected by the order or condition of bond normally resides or attends
  • Possesses a firearm

‘Sexual abuse’ means any act as described by § 21.02 or 21.11. ‘Sexual assault’ means any act as described by § 22.011 or 22.021. ‘Stalking’ means any conduct that constitutes an offense under § 42.072.

‘Family violence,’ ‘family,’ ‘household,’ and ‘member of a household’ have the meanings assigned by Chapter 71, Family Code.

Persons Included in the Definition

‘Dating relationship’ means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

  • The length of the relationship
  • The nature of the relationship
  • The frequency and type of interaction between the persons involved in the relationship

A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a ‘dating relationship.’

‘Family’ includes individuals related by consanguinity or affinity, as determined under §§ 573.022 and 573.024, Government Code; individuals who are former spouses of each other; individuals who are the parents of the same child, without regard to marriage; and a foster child and foster parent, without regard to whether those individuals reside together.

‘Household’ means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. ‘Member of a household’ includes a person who previously lived in a household.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

The following information is confidential, not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable Federal or State law or under rules adopted by an investigating agency:

  • A report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report
  • Except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation or in providing services as a result of an investigation
Persons or Entities Allowed Access to Records

A court may order the disclosure of information that is confidential if:

  • A motion has been filed requesting the release of the information.
  • A notice of hearing has been served on the investigating agency and all other interested parties.
  • After a hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is essential to the administration of justice and is not likely to endanger the life or safety of a child who is the subject of the report, a person who made the report, or any other person who participates in an investigation or who provides care for the child.

The adoptive parents of a child who was the subject of an investigation and an adult who was the subject of an investigation as a child are entitled to examine and make copies of any report, record, or other information in the possession of the State that pertains to the history of the child. The department may edit the documents to protect the identity of the biological parents and any other person whose identity is confidential, unless this information is already known to the adoptive parents or is readily available through other sources.

The department shall provide to a relative or other individual with whom a child is placed any information the department considers necessary to ensure that the relative or other individual is prepared to meet the needs of the child. The information may include information related to any abuse or neglect suffered by the child.

The department shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information that would otherwise be confidential if the department has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure.

When Public Disclosure of Records is Allowed

When the Department of Family and Protective Services receives a request for information about a child fatality about which the department is conducting an investigation, the department shall release:

  • The age and sex of the child
  • The date of death
  • Whether the State was the managing conservator of the child at the time of death
  • Whether, at the time of death, the child resided with his or her parent, managing conservator, guardian, or other person entitled to possession of the child

If, after an investigation is completed, the department determines a child’s death was caused by abuse or neglect, the department shall promptly release the following information on request:

  • The information described above
  • For cases in which the child’s death occurred while the child was living with his or her parent, managing conservator, guardian, or other person entitled to possession of the child:
    • A summary of any previous reports of abuse or neglect
    • The disposition of any report
    • A description of the services, if any, that were provided
    • The results of any risk or safety assessment
  • For a case in which the child’s death occurred while the child was in substitute care, the following information:
    • The date the substitute care provider was licensed
    • A summary of any previous reports of abuse or neglect investigated by the department
    • Any reported licensing violations
    • Records of any training completed by the substitute care provider

Before any release of records, the department shall redact any information that would:

  • Identify the individual who reported the abuse or neglect or any other individual other than the deceased child or an alleged perpetrator
  • Jeopardize an ongoing criminal investigation or prosecution
  • Endanger the life or safety of any person
  • Violate State or Federal law
Use of Records for Employment Screening

The Department of Family and Protective Services may enter into agreements with other States to allow for the exchange of reports of child abuse and neglect in other States’ central registry systems. The department shall use information obtained under this subsection in performing the background checks of child care facilities, as required by § 42.056, Human Resources Code.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect, or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect, is immune from civil or criminal liability that might otherwise be incurred or imposed.

Immunity from civil and criminal liability extends to an authorized volunteer of the Department of Human Services or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities.

A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

 

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 cause to believe that a child has been adversely affected by abuse or neglect shall immediately make a report.

A professional who has cause to believe that a child has been abused or neglected or may be abused or neglected shall make a report no later than 48 hours after the professional first suspects that the child has been or may be abused or neglected.

Content of Reports

The person making a report shall identify, if known:

  • The name and address of the child
  • The name and address of the person responsible for the care, custody, or welfare of the child
  • Any other pertinent information concerning the alleged abuse or neglect
Reporting Suspicious Deaths

The department or designated agency shall immediately notify the law enforcement agency of any report it receives that concerns the death of a child from abuse or neglect.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The report shall be made to a law enforcement agency, the department, the agency that operates or licenses the facility where the abuse or neglect occurred, or to the agency designated by the court to be responsible for the protection of children.

The report must be made to the department if the alleged or suspected abuse or neglect involves a person responsible for the care, custody, or welfare of the child.

Initial Screening Decisions

The department shall establish a flexible response system to allow the department to make the most effective use of resources by investigating serious cases of abuse and neglect and by screening out less serious cases of abuse and neglect if the department determines that the child’s safety can be assured without further investigation. The department may administratively close the less serious cases without providing services or by making a referral to another entity for assistance.

A case is considered to be a less serious case of abuse or neglect if the circumstances of the case do not indicate an immediate risk of abuse or neglect that could result in the death of or serious harm to the child.

In regulation: Child Protective Services (CPS) assigns priorities for reports of abuse and neglect based on the assessment of the immediacy of the risk and the severity of the possible harm to the child. Reports are assigned to one of two categories:

  • Priority I reports concern children who appear to face an immediate risk of abuse or neglect that could result in death or serious harm.
  • Priority II reports are all other reports of abuse or neglect that are not assigned a Priority I.
Agency Conducting the Assessment/Investigation

With assistance from the appropriate State or local law enforcement agency, the department or designated agency shall make a prompt and thorough investigation of a report of child abuse or neglect allegedly committed by a person responsible for a child’s care, custody, or welfare.

A State agency shall investigate a report that alleges abuse or neglect occurred in a facility operated, licensed, certified, or registered by that agency.

The department is not required to investigate a report that alleges child abuse or neglect by a person other than a person responsible for a child’s care, custody, or welfare. The appropriate State or local law enforcement agency shall investigate that report if the agency determines an investigation should be conducted.

An investigation of a report that alleges that a child has been or may be the victim of a criminal offense, that poses an immediate risk of physical or sexual abuse that could result in the death of or serious harm to the child, shall be conducted jointly by the department and a peace officer.

Assessment/Investigation Procedures

As necessary to provide for the protection of the child, the department or designated agency shall determine:

  • The nature, extent, and cause of the abuse or neglect
  • The identity of the person responsible for the abuse or neglect
  • 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 adequacy of the home environment
  • The relationship of the child to the persons responsible for the care, custody, or welfare of the child
  • All other pertinent data

The investigation may include:

  • A visit to the child’s home unless the alleged abuse or neglect can be confirmed or clearly ruled out without a home visit
  • An interview with and examination of the subject child, which may include a medical, psychological, or psychiatric examination

The interview with and examination of the child may:

  • Be conducted at any reasonable time and place, including the child’s home or the child’s school
  • Include the presence of persons the department or designated agency determines are necessary
  • Include transporting the child for purposes relating to the interview or investigation

The investigation may include an interview with the child’s parents and an interview with and medical, psychological, or psychiatric examinations of any child in the home.

Timeframes for Completing Investigations

The department shall assign by rule priorities and prescribe investigative procedures for investigations based on the severity and immediacy of the alleged harm to the child. The department is required to:

  • Immediately respond to a report that involves circumstances in which the death of the child or substantial bodily harm to the child would result unless the department immediately intervenes
  • Respond within 24 hours to a report that is assigned the highest priority
  • Respond within 72 hours to a report that is assigned the second highest priority

In regulation: CPS must:

  • Respond immediately to a report of abuse or neglect that is assigned as a Priority I and involves circumstances in which the death of the child or substantial bodily harm to the child will imminently result unless the department immediately intervenes
  • Respond within 24 hours to a report of abuse or neglect that is assigned a Priority I, other than a report described above
  • Respond within 72 hours to a report of abuse or neglect that is assigned a Priority II by initiating an investigation or by forwarding the report to specialized screening staff
Classification of Reports

The finding made in the investigation about each individual allegation of abuse/neglect that was identified at intake or during the investigation is assigned one of the following allegation dispositions:

  • Reason-to-believe: Based on a preponderance of evidence, staff conclude that abuse or neglect has occurred.
  • Ruled-out: Staff determine, based on available information, that it is reasonable to conclude that the abuse or neglect has not occurred.
  • Moved: Before staff could draw a conclusion, the persons involved in the allegation moved and could not be located.
  • Unable-to-determine: Staff conclude that none of the dispositions specified above is appropriate.
  • Administrative closure: Information received after a case was assigned for investigation reveals that continued intervention is unwarranted.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Persons required to report include professionals, for purposes of the reporting laws, who are licensed or certified by the State or who are an employees of facilities licensed, certified, or operated by the State and who, in the normal course of official duties or duties for which licensure or certification is required, have direct contact with children. Professionals include:

  • Teachers or daycare employees
  • Nurses, doctors, or employees of a clinic or health-care facility that provides reproductive services
  • Juvenile probation officers or juvenile detention or correctional officers
Reporting by Other Persons

A person who has cause to believe that a child has been adversely affected by abuse or neglect shall immediately make a report.

Institutional Responsibility to Report

A professional may not delegate to or rely on another person to make the report.

An employer may not suspend or terminate the employment of, or otherwise discriminate against, a person who is a professional and who in good faith:

  • Reports child abuse or neglect to the person’s supervisor, an administrator of the facility where the person is employed, a State regulatory agency, or a law enforcement agency
  • Initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of child abuse or neglect

A person whose employment is suspended or terminated or who is otherwise discriminated against in violation of this section may sue for injunctive relief, damages, or both.

Standards for Making a Report

A report is required when a person has cause to believe that a child has been adversely affected by abuse or neglect.

In addition, a person or professional shall make a report if the person or professional has cause to believe that an adult was a victim of abuse or neglect as a child, and the person or professional determines in good faith that disclosure of the information is necessary to protect the health and safety of another child, an elderly person, or person with a disability.

Privileged Communications

The requirement to report applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or health-care facility that provides reproductive services.

In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communication between an attorney and client.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Unless waived in writing by the person making the report, the identity of an individual making a report is confidential and may be disclosed only:

  • As provided by § 261.201
  • To a law enforcement officer for the purposes of conducting a criminal investigation of the report

A report of alleged or suspected abuse or neglect and the identity of the person making the report are confidential. A court may order the disclosure of such confidential information, if after a hearing and an in camera review of the requested information, the court determines that the disclosure is:

  • Essential to the administration of justice
  • Not likely to endanger the life or safety of a child who is the subject of the report, a person who made the report, or any other person who participates in an investigation of reported abuse or neglect or who provides care for the child

The Texas Youth Commission shall release a report of alleged or suspected abuse if the report relates to abuse or neglect involving a child committed to the commission. The commission shall edit any report disclosed under this section to protect the identity of:

  • A child who is the subject of the report
  • The person who made the report
  • Any other person whose life or safety may be endangered by the disclosure

 

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Abuse’ includes the following acts or omissions by a person:

  • Causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning
  • The current use by a person of a controlled substance as defined by the Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child
  • Causing, expressly permitting, or encouraging a child to use a controlled substance

‘Born addicted to alcohol or a controlled substance’ means a child:

  • Who is born to a mother who, during the pregnancy, used a controlled substance, as defined by the Health and Safety Code, other than a controlled substance legally obtained by prescription, or alcohol
  • Who, after birth as a result of the mother’s use of the controlled substance or alcohol:
    • Experiences observable withdrawal from the alcohol or controlled substance
    • Exhibits observable or harmful effects in the child’s physical appearance or functioning
    • Exhibits the demonstrable presence of alcohol or a controlled substance in the child’s bodily fluids

To the extent that reporting does not interfere with an ongoing criminal investigation, the Department of Public Safety of the State of Texas and each local law enforcement agency shall report to the department on discovering the presence of a child in a location where methamphetamine is manufactured.

The department shall maintain a record of reports received under this section and shall include in the record information regarding actions taken by the department to ensure the child’s safety and well-being.

The Department of Family and Protective Services shall establish a drug-endangered child initiative aimed at protecting children who are exposed to methamphetamine or to chemicals and other hazardous materials used in the illicit manufacture of methamphetamine.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In a suit filed concerning alleged abuse or neglect of a child, the court shall appoint a guardian ad litem (GAL) to represent the best interests of the child immediately after the filing of the petition but before the full adversary hearing. The court shall also appoint an attorney ad litem to represent the interests of the child to ensure adequate representation of the child.

A GAL is a person appointed to represent the best interests of a child. The term includes:

  • A volunteer advocate
  • A professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests
  • An adult having sufficient competence, training, and expertise to represent the best interests of the child
  • An attorney ad litem appointed to serve in the dual role of attorney ad litem and GAL

The court may not appoint a GAL if an attorney is appointed in the dual role unless the court appoints another person to serve as GAL for the child and restricts the role of the attorney to acting as an attorney ad litem for the child. The court may appoint an attorney to serve as GAL for a child without appointing the attorney to serve in the dual role only if the attorney is specifically appointed to serve only in the role of GAL.

In order to comply with the mandatory appointment of a GAL and attorney ad litem, the court may appoint an attorney to serve in the dual role. If the court appoints an attorney to serve in the dual role, the court may at any time during the pendency of the suit appoint another person to serve as GAL for the child and restrict the attorney to acting as an attorney ad litem for the child.

The Use of Court-Appointed Special Advocates (CASAs)

In a suit alleging child abuse or neglect, the court may appoint a charitable organization composed of volunteer advocates whose charter mandates the provision of services to allegedly abused and neglected children or appoint an individual who has received the court’s approved training regarding abused and neglected children and who has been certified by the court to appear at court hearings as a GAL for the child or as a volunteer advocate for the child.

A court-certified volunteer advocate appointed under this section may be assigned to act as a surrogate parent for the child, as provided by 20 U.S.C. § 1415(b), if:

  • The child is in the conservatorship of the Department of Family and Protective Services.
  • The volunteer advocate is serving as GAL for the child.
  • A foster parent of the child is not acting as the child’s parent under § 29.015, Education Code.

‘Volunteer advocate program’ means a volunteer-based, nonprofit program that:

  • Provides advocacy services to abused or neglected children with the goal of obtaining a permanent placement for a child that is in the child’s best interests
  • Complies with recognized standards for volunteer advocate programs
Qualifications/Training

An attorney ad litem provides legal services to a child. He or she owes the child undivided loyalty, confidentiality, and competent representation.

An attorney ad litem appointed to represent a child must be trained in child advocacy or have experience determined by the court to be equivalent to that training. The attorney ad litem shall, as appropriate, considering the nature of the appointment, become familiar with the American Bar Association’s standards of practice for attorneys who represent children in abuse and neglect cases, the suggested amendments to those standards adopted by the National Association of Counsel for Children, and the American Bar Association’s standards of practice for attorneys who represent children in custody cases.

An attorney ad litem appointed for a child shall complete at least 3 hours of continuing legal education relating to representing children in child protection cases as soon as practicable after the attorney ad litem is appointed. An attorney ad litem is not required to comply with this subsection if the court finds that the attorney ad litem has experience equivalent to the required education. An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a child in a child protection case must complete at least 3 hours of continuing legal education relating to the representation of a child each year before the anniversary date of the attorney’s listing.

The required continuing legal education must be low-cost and available to persons throughout the State, including on the Internet provided through the State Bar of Texas and focus on the duties, procedures, and best practices in representing a child in a child protection.

Specific Duties

An attorney ad litem shall:

  • Interview:
    • The child in a developmentally appropriate manner if the child is age 4 or older
    • Each person who has significant knowledge of the child’s history and condition, including any foster parent
    • The parties to the suit
  • Seek to elicit the child’s expressed wishes
  • Consider the impact on the child of the child’s wishes
  • Investigate the facts of the case
  • Review copies of relevant records relating to the child
  • Receive copies of pleadings and notices of hearings
  • Participate in any agency staffing concerning the child
  • Before each hearing:
    • Review the medical care provided to the child
    • In a developmentally appropriate manner, seek the child’s opinion on the medical care provided
    • For a child at least age 16, advise the child of his or her right to request the court to authorize the child to consent to his or her own medical care
    • Determine whether the child’s educational needs and goals have been identified and addressed

The attorney shall advise the child, represent the child’s expressed wishes, and follow the child’s wishes during the course of litigation if he or she determines that the child is competent to understand the nature of an attorney-client relationship. The attorney ad litem shall meet before each court hearing with the child if the child is at least age 4 or the person with whom the child ordinarily resides if the child is younger than age 4.

If the child is not present at the court hearing, the attorney must file a written statement with the court indicating that the attorney has met with the child as required. The meeting must take place:

  • At a sufficient time before the hearing to allow the attorney to prepare for the hearing in accordance with the child’s expressed objectives of representation
  • In a private setting that allows for confidential communications between the attorney and the child or individual with whom the child ordinarily resides, as applicable

The attorney may determine that the child cannot meaningfully express his or his wishes because the child:

  • Lacks sufficient maturity to understand and form an attorney-client relationship
  • Despite appropriate counseling, continues to express wishes that would be seriously injurious to the child
  • For any other reason is incapable of making reasonable judgments

When this is the case, the attorney may present to the court a position that he or she determines will serve the best interests of the child.

If a GAL has been appointed for the child, an attorney ad litem who determines that the child cannot meaningfully express his or her wishes:

  • Shall consult with the GAL and present to the court the GAL’s recommendations regarding the best interests of the child
  • May present to the court a position that the attorney feels will serve the best interests of the child
How the Representative Is Compensated

An attorney appointed to serve as an attorney ad litem for a child or an attorney in a dual role is entitled to reasonable fees and expenses in the amount set by the court to be paid by the parents of the child unless the parents are indigent.

If the court determines that one or more of the parties are able to defray the fees and expenses of an attorney ad litem or GAL for the child as determined by the reasonable and customary fees for similar services in the county of jurisdiction, the fees and expenses may be ordered paid by one or more of those parties, or the court may order one or more of those parties, prior to final hearing, to pay the sums into the registry of the court or into an account authorized by the court for the use and benefit of the payee on order of the court. The sums may be taxed as costs to be assessed against one or more of the parties.

If indigence of the parents is shown, an attorney ad litem appointed to represent a child shall be paid from the general funds of the county according to the fee schedule. The court may not award attorney ad litem fees against the State, a State agency, or a political subdivision of the State except as provided by this subsection.

A person appointed as a GAL or attorney ad litem shall complete and submit to the court a voucher or claim for payment that lists the fees charged and hours worked by the GAL or attorney ad litem.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A service plan must be filed no later than the 45th day after the date the court renders a temporary order appointing the department as temporary managing conservator of a child.

Who May Participate in the Case Planning Process

The service plan shall be prepared by the department or other agency in conference with the child’s parents.

In regulation: Child Protective Services must ask the following individuals to participate in developing the child’s service plan:

  • The child’s caseworker in the conservatorship unit
  • The caseworker supervising the placement, if different from the caseworker in the conservatorship unit
  • The child, unless he or she is too young to participate
  • The child’s parents, unless they:
    • Cannot be located, despite due diligence
    • Have had their parental rights terminated
    • Refuse to participate
  • The substitute caregiver (e.g., a relative, the foster parent, or a representative of the general residential operation in which the child is placed)
  • Each person appointed by the court to serve as the child’s attorney ad litem, guardian ad litem, or court-appointed special advocate
  • A prospective adoptive family with whom the child has been placed for adoption
  • When appropriate, other family members, professionals, and volunteers who are or will be providing services to the child or the child’s family
Contents of a Case Plan

The service plan must:

  • Be written in a language that the parents understand
  • State appropriate deadlines
  • State whether the goal of the plan is:
    • The return of the child to the child’s parents
    • The termination of parental rights and placement of the child for adoption
    • Because of the child’s special needs or exceptional circumstances, the continuation of the child’s care out of the child’s home
  • State the steps that are necessary to:
    • Return the child to the child’s home if the placement is in foster care
    • Enable the child to remain in the child’s home with the assistance of a service plan if the placement is in the home under the department’s or other agency’s supervision
    • Provide a permanent safe placement for the child
  • State the actions and responsibilities that are necessary for the child’s parents to take to achieve the plan goal during the period of the service plan and the assistance to be provided to the parents from the department or other authorized agency toward meeting that goal
  • State any specific skills or knowledge that the child’s parents must acquire or learn, as well as any behavioral changes the parents must exhibit, to achieve the plan goal
  • State the actions and responsibilities that are necessary for the child’s parents to take to ensure that the child attends school and maintains or improves the child’s academic compliance
  • State the name of the person with the department or other agency whom the child’s parents may contact for information relating to the child if other than the person preparing the plan
  • Prescribe any other term or condition that the department or other agency determines to be necessary to the service plan’s success
  • Include a statement to the parent that failure to provide a safe environment for the child may result in termination of parental rights

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

Regardless of whether the goal stated in a child’s service plan is to return the child to the child’s parents or to terminate parental rights and place the child for adoption, the Department of Family and Protective Services shall concurrently provide to the child and to the child’s family as applicable:

  • Time-limited family reunification services, as defined by 42 U.S.C § 629a, for a period not to exceed the period within which the court must render a final order in or dismiss the suit affecting the parent-child relationship with respect to the child
  • Adoption promotion and support services, as defined by 42 U.S.C. § 629a

At each permanency hearing the court shall determine whether the department has made reasonable efforts to finalize the permanency plan that is in effect for the child, including the concurrent permanency goals for the child.

In accordance with department rules, a child’s permanency plan must include concurrent permanency goals consisting of a primary permanency goal and at least one alternate permanency goal.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A status hearing shall be held no later than 60 days after the child is placed to review the child’s status and service plan.

A permanency hearing shall be held:

  • No later than 180 days after the child is placed with the Department of Family and Protective Services and subsequent hearings no later than 120 days thereafter
  • Within 30 days of a finding that reasonable efforts are not required
Persons Entitled to Attend Hearings

The following persons are entitled to receive notice of a permanency hearing and are entitled to present evidence and be heard at the hearing:

  • The foster parent, preadoptive parent, relative of the child providing care, or the director of the group home or institution where the child resides
  • Each parent of the child
  • The managing conservator or guardian of the child
  • An attorney ad litem or a volunteer advocate appointed for the child
  • The child if the child is age 10 or older or the court determines it is appropriate for the child to receive notice
  • Any other person or agency named by the court to have an interest in the child’s welfare

The child shall attend each permanency hearing unless the court specifically excuses the child’s attendance.

Determinations Made at Hearings

At each permanency hearing, the court shall determine:

  • The safety and well-being of the child and whether the child’s needs are being adequately addressed
  • The appropriateness of the child’s primary and alternative permanency goals
  • Whether an education decision-maker for the child has been identified
  • For a child age 14 or older, whether services that are needed to assist the child in transitioning from substitute care to Independent Living are available in the child’s community
  • For a child whose permanency goal is another planned permanent living arrangement:
    • The desired permanency outcome for the child, by asking the child
    • Whether another planned permanent living arrangement is the best permanency plan for the child and, if so, provide compelling reasons why another permanency option is not in the child’s best interests

The court also shall determine:

  • The safety of the child
  • The continuing necessity and appropriateness of the placement
  • The extent of compliance with the case plan
  • Whether the child’s education needs and goals have been identified and addressed
  • The extent of progress that has been made toward alleviating or mitigating the causes necessitating the placement of the child in foster care
  • Whether the department has made reasonable efforts to finalize the child’s permanency plan, including the concurrent permanency goals
  • A likely date by which the child may be returned to and safely maintained in the child’s home, placed for adoption, or placed in permanent managing conservatorship

In addition, at each permanency hearing the court shall review the department’s efforts to ensure that the child has regular, ongoing opportunities to engage in age-appropriate normalcy activities, including activities not listed in the child’s service plan.

Permanency Options

The department’s permanency plan for a child may include as a goal:

  • The reunification of the child with a parent or other individual from whom the child was removed
  • The termination of parental rights and adoption of the child by a relative or other suitable individual
  • The award of permanent managing conservatorship of the child to a relative or other suitable individual
  • Another planned, permanent living arrangement for the child

If the goal of the department’s permanency plan for a child is to find another planned, permanent living arrangement for the child, the department shall document that there is a compelling reason why the other permanency goals identified in above are not in the child’s best interests.

 

Determining the Best Interests of the Child

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Current Through March 2016

The following factors should be considered in determining whether the child’s parents are willing and able to provide the child with a safe environment:

  • The child’s age and physical and mental vulnerabilities
  • The frequency and nature of out-of-home placements
  • The magnitude, frequency, and circumstances of the harm to the child
  • Whether the child has been the victim of repeated harm
  • Whether the child is fearful of living in or returning to the child’s home
  • The results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, or other family members
  • Whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home
  • Whether there is a history of substance abuse by the child’s family or others who have access to the child’s home
  • Whether the perpetrator of the harm to the child is identified
  • The willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision
  • The willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time
  • Whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with:
    • Minimally adequate health and nutritional care
    • Care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development
    • Guidance and supervision consistent with the child’s safety
    • A safe home environment
    • Protection from repeated exposure to violence even though the violence may not be directed at the child
    • An understanding of the child’s needs and capabilities
  • Whether an adequate social support system consisting of an extended family and friends is available to the child

In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interests.

In the case of a child age 16 or older, the following guidelines should be considered by the court in determining whether to adopt the permanency plan submitted by the department:

  • Whether the permanency plan submitted to the court includes the services planned for the child to make the transition from foster care to independent living
  • Whether this transition is in the best interests of the child

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may order termination parental rights if the court finds by clear and convincing evidence that the parent has:

  • Abandoned the child
  • Knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child
  • Failed to support the child in accordance with the parent’s ability for 1 year
  • Voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy and continuing through the birth, failed to provide adequate support or medical care for the mother during her pregnancy, and remained apart from the child or failed to support the child since the birth
  • Been the major cause of the failure of the child to be enrolled in school as required by law or to be absent from the child’s home without the consent of the parents for a substantial length of time or without the intent to return
  • Been convicted of any of the following crimes that caused the death or serious injury of a child:
    • Murder or manslaughter
    • Assault, sexual assault, aggravated assault, or aggravated sexual assault
    • Injury to a child or abandoning or endangering a child
    • Indecency with a child or prohibited sexual conduct
    • Sexual performance by a child or possession or promotion of child pornography
    • Continuous sexual abuse of a young child
    • Trafficking of persons or compelling prostitution
  • Had his or her parental rights terminated with respect to another child
  • Failed to comply with the provisions of the case plan established for the parent to obtain the return of the child
  • Used a controlled substance in a manner that endangered the health or safety of the child and failed to complete a court-ordered substance abuse treatment program or after completion of a treatment program, continued to abuse a controlled substance
  • Been incarcerated and unable to care for the child for 2 years
  • Been the cause of the child being born addicted to alcohol or a controlled substance
  • Voluntarily delivered the child to a designated emergency infant care provider without expressing an intent to return for the child
  • Been convicted of:
    • The murder of the other parent of the child
    • The criminal attempt or solicitation to commit murder of the other parent
  • Been convicted of a sexual offense and the victim of the offense became pregnant with the parent’s child

The rights of an alleged father may be terminated if:

  • After being served with notice, he does not respond by timely filing an admission of paternity or a counterclaim for paternity.
  • The child is over age 1 at the time the petition for termination is filed, he has not registered with the paternity registry, and after the exercise of due diligence by the petitioner, his identity and/or location are unknown.
  • The child is under age 1 at the time the petition is filed, and he has not registered with the paternity registry.
  • He has registered with the paternity registry but the petitioner’s attempt to personally serve notice at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner.
Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

‘Kinship provider’ means a relative of a foster child, or another adult with a longstanding and significant relationship with a foster child before the child was placed with the person by the Department of Family and Protective Services, and with whom the child resides for at least 6 consecutive months after the person becomes licensed by the department or verified by a licensed child-placing agency or the department to provide foster care.

The term ‘relative’ means a person related to a foster child by consanguinity or affinity.

In regulation: ‘Permanent custodian’ means a person who is granted managing conservatorship of a child who was in the managing conservatorship of the department immediately prior to managing conservatorship being granted to that person. The term does not include a parent of the child or other person from whom the child was legally removed by the department.

‘Prospective permanent custodian’ means a person who has demonstrated a strong commitment to caring permanently for a child in the managing conservatorship of the department and who applies for or has entered into an agreement with the department for permanency care assistance, but has not yet been named the managing conservator of the child.

Purpose of Guardianship

The department shall develop a program to promote continuity and stability for children for whom the department is appointed managing conservator by placing those children with relative or other designated caregivers.

A Guardian’s Rights and Responsibilities

Unless limited by court order or other provisions of this chapter, a nonparent appointed as a managing conservator of the child has the following rights and duties:

  • The right to have physical possession and to direct the moral and religious training of the child
  • The duty of care, control, protection, and reasonable discipline of the child
  • The duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care
  • The right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment and to have access to the child’s medical records
  • The right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child
  • The right to the services and earnings of the child
  • The right to consent to marriage and to enlistment in the armed forces of the United States
  • The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child
  • The right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a State, the United States, or a foreign government, except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child
  • The right to designate the primary residence of the child and to make decisions regarding the child’s education
  • If the parent-child relationship has been terminated with respect to the parents or only living parent, or if there is no living parent, the right to consent to the adoption of the child and to make any other decision concerning the child that a parent could make
Qualifying the Guardian

The department or other authorized entity shall expedite the completion of the background and criminal history check, the home study, and any other administrative procedure to ensure that the child is placed with a qualified relative or caregiver as soon as possible after the date the caregiver is identified.

Before placing a child with a proposed relative or other designated caregiver, the department must conduct an investigation to determine whether the proposed placement is in the child’s best interests.

Except as provided below, before placing a child with a proposed relative or other designated caregiver, the department must:

  • Arrange a visit between the child and the proposed caregiver
  • Provide the proposed caregiver with a form, which may be the same form the department provides to nonrelative caregivers, containing information, to the extent it is available, about the child that would enhance continuity of care for the child, including:
    • The child’s school information and educational needs
    • The child’s medical, dental, and mental health care information
    • The child’s social and family information
    • Any other information about the child the department determines will assist the proposed caregiver in meeting the child’s needs

The department may waive the requirements above if the proposed relative or other designated caregiver has a long-standing or significant relationship with the child and has provided care for the child at any time during the 12 months preceding the date of the proposed placement.

Procedures for Establishing Guardianship

A designated caregiver is an individual who has a longstanding and significant relationship with a child for whom the department has been appointed managing conservator and who is appointed to provide substitute care for the child. However, the individual is not licensed by the department or verified by a licensed child-placing agency or the department to operate a foster home or is subsequently appointed permanent managing conservator of the child after providing such care.

A relative caregiver is a relative who provides substitute care for a child for whom the department has been appointed managing conservator, but who is not licensed to operate a foster home, or is subsequently appointed permanent managing conservator of the child after providing such care.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child, if modification would be in the best interests of the child and:

  • The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed.
  • The child is at least age 12 and has expressed to the court in chambers the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.
  • The conservator, who has the exclusive right to designate the primary residence of the child, has voluntarily relinquished the primary care and possession of the child to another person for at least 6 months.

The above subsection does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty.

Eligibility for Guardianship Subsidy

The department shall, subject to the availability of funds, enter into a caregiver assistance agreement with each relative or other designated caregiver to provide monetary assistance and additional support services to the caregiver. The monetary assistance and support services shall be based on a family’s need, as determined by rules adopted by the executive commissioner.

Notwithstanding any other provision of this subchapter, a relative or other designated caregiver who becomes licensed by the department or verified by a licensed child-placing agency or the department to operate a foster home may receive foster care payments in lieu of the benefits provided by this subchapter, beginning with the first month in which the relative or other designated caregiver becomes licensed or is verified.

The department shall enter into a permanency care assistance agreement with a kinship provider who is eligible to receive permanency care assistance benefits. The department may enter into a permanency care assistance agreement with a kinship provider who is the prospective managing conservator of a foster child only if the kinship provider meets the eligibility criteria under Federal and State law and department rule.

The executive commissioner shall adopt rules necessary to implement the permanency care assistance program. The rules must:

  • Establish eligibility requirements to receive permanency care assistance benefits under the program
  • Ensure that the program conforms to the requirements for Federal assistance as required by the Fostering Connections to Success and Increasing Adoptions Act of 2008 (P. L. 110-351)
Links to Agency Policies

Texas Department of Family and Protective Services:

Texas Administrative Code, Title 40, Part 19, Chapter 700external link

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

In this subchapter:

  • The term ‘designated caregiver’ means an individual who has a longstanding and significant relationship with a child for whom the department has been appointed managing conservator and who:
    • Is appointed to provide substitute care for the child but is not licensed or certified to operate a foster home, foster group home, agency foster home, or agency foster group home
    • Is subsequently appointed permanent managing conservator of the child after providing care for the child
  • The term ‘relative caregiver’ means a relative who:
    • Provides substitute care for a child for whom the department has been appointed managing conservator but who is not licensed or certified to operate a foster home, foster group home, agency foster home, or agency foster group home
    • Is subsequently appointed permanent managing conservator of the child after providing care for the child

The Department of Family and Protective Services (DFPS) shall develop and procure a program to:

  • Promote continuity and stability for children for whom the department is appointed managing conservator by placing those children with relative or other designated caregivers
  • Facilitate relative or other designated caregiver placements by providing assistance and services to those caregivers
Requirements for Placement with Relatives

DFPS shall expedite the completion of the background and criminal history check and home study so that that the child is placed with a qualified relative or caregiver as soon as possible after the caregiver is identified.

Before placing a child, DFPS must conduct an investigation to determine whether the proposed placement is in the child’s best interests.

DFPS, subject to the availability of funds, shall enter into a caregiver assistance agreement with each caregiver to provide monetary assistance and additional support services.

Upon initial placement of a child or sibling group, a one-time cash payment shall be made to assist the caregiver in purchasing essential child care items such as furniture and clothing. The amount of the cash payment may not exceed $1,000 for each child.

Monetary assistance and additional support services may include:

  • Case management services and training and information about the child’s needs
  • Referrals to public benefits or assistance programs for which the child or the caregiver may qualify
  • Family counseling, not provided under Medicaid, for the caregiver’s family for up to 2 years after the initial placement
  • If the caregiver meets eligibility criteria, reimbursement of all child care expenses while the child is under age 13, or under age 18 if the child has a developmental disability
  • If the caregiver meets eligibility criteria, reimbursement of 50 percent of child care expenses after the caregiver is appointed permanent managing conservator
  • Up to $500 per year for each child for other expenses

Each caregiver who seeks assistance for daycare first must attempt to find appropriate daycare services for the child through community services, including Head Start programs, prekindergarten classes, and early education programs offered in public schools.

Requirements for Placement of Siblings

It is the policy of this State that each child in foster care be informed of the child’s right to placement with the child’s siblings and contact with members of the child’s family.

In regulation: Siblings removed from their home should be placed together, unless such placement would be contrary to the safety or well-being of any of the siblings.

When siblings are not placed together, DFPS must provide for frequent visits or other ongoing interaction between siblings, unless:

  • The court has ordered otherwise.
  • DFPS has determined and documented in the service plan that frequent visits or other ongoing interaction would be contrary to the safety or well-being of any of the siblings, and the court has not ordered that visits or contact between the siblings occur.

A child must have a reasonable opportunity for sibling visits and contacts in an effort to preserve sibling relationships. The caseworker must address plans for sibling visits and contacts in the child’s record.

If barriers to visits exist, such as unavoidable geographic distance and expense issues, the caseworker must make provisions for sibling contact through letters, telephone calls, or some other means.

Relatives Who May Adopt

The following relatives have standing to adopt a child:

  • A grandparent
  • An aunt or uncle by birth, marriage, or former adoption
  • A stepparent
Requirements for Adoption by Relatives

The report on health, social, educational, and genetic history of the child is not required when the child is being adopted by a relative.

The court shall order each person seeking to adopt a child to obtain his or her own criminal history record information. The person must request the information from the Department of Public Safety, as provided by Government Code § 411.128.

 

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

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

Current Through March 2016

What Are Reasonable Efforts

In determining the reasonable efforts that are required to be made with respect to preventing or eliminating the need to remove a child from the child’s home or to make it possible to return a child to the child’s home, the child’s health and safety are the paramount concerns.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent or eliminate the need to remove a child from the child’s home
  • To make it possible for the child to return home
  • To finalize the permanent placement of a child for whom the court has made a finding that reasonable efforts to return the child home are not required
When Reasonable Efforts Are NOT Required

The court may waive the requirement to make reasonable efforts if the court finds that the parent has subjected the child to aggravated circumstances such as the following:

  • The parent abandoned the child without a means of identifying the child.
  • The child or another child of the parent is a victim of serious bodily injury or sexual abuse inflicted by the parent or another person with the parent’s consent.
  • The parent has engaged in conduct against the child or another child of the parent that would constitute the offense of murder, manslaughter, indecency with a child, sexual assault, aggravated assault, injury to a child, abandoning or endangering a child, prohibited sexual conduct, sexual performance by a child, possession or promotion of child pornography, continuous sexual abuse of a child, compelling prostitution, or trafficking of persons.
  • The parent voluntarily left the child alone or in the possession of another person for at least 6 months without expressing the intent to return and without providing adequate support for the child.
  • The parent’s parental rights to another child of the parent have been terminated involuntarily based on a finding that the parent knowingly placed or allowed the child to remain in conditions or surroundings, or with persons engaged in conduct, that endangered the child’s physical or emotional well-being.
  • The parent has been convicted for the murder or voluntary manslaughter of another child, or aiding, abetting, or attempting such crime.
  • The parent has been convicted of a felony assault that resulted in serious bodily injury of the child or another child of the parent.
  • The parent’s parental rights with regard to two other children have been involuntarily terminated.
  • The parent is required under any State or Federal law to register with a sex offender registry.

 

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

CLICK HERE  for CPS Statutes & Rules

 

2113 Statutory Definitions of Child Abuse and Neglect

2113.1Definitions of Abuse

CPS September 2015

The Texas legislature established the overall definition of abuse. CPS has further divided abuse into five types.

Emotional Abuse (EMAB)

Emotional abuse can be characterized as:

  • mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;

Texas Family Code §261.001(1)(A)External Link

  • causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning; or

Texas Family Code §261.001(1)(B)External Link

  • the current use of a controlled substance as defined by Chapter 481External Link, Health and Safety Code, in a manner or to the extent that the use results in mental or emotional injury to a child.

Texas Family Code §261.001(1)(I)External Link

Labor Trafficking (LBTR)

Labor trafficking can be characterized as knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under §20A.02(a)(5) or (6)External Link Penal Code, or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of these sections.

Texas Family Code §261.001(1)(L)External Link

Physical Abuse (PHAB)

Physical abuse can be characterized as:

  • physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;

Texas Family Code §261.001(1)(C)External Link

  • failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;

Texas Family Code §261.001(1)(D)External Link

  • current use of a controlled substance as defined by Chapter 481External Link, Health and Safety Code, in a manner or to the extent that the use results in physical injury to a child;

Texas Family Code §261.001(1)(I)External Link

  • causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481External Link, Health and Safety Code.

Texas Family Code §261.001(1)(J)External Link

Sex Trafficking (SXTR)

Sex trafficking can be characterized as:

  • knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked in a manner punishable as an offense under §20A.02(a)(7) or (8)External Link, Penal Code, or the failure to make a reasonable effort to prevent a child from being trafficked in a manner punishable as an offense under any of these sections;

Texas Family Code §261.001(1)(L)External Link

Texas Family Code §261.001(1)(G)External Link

Sexual Abuse (SXAB)

Sexual abuse can be characterized as:

Texas Family Code §261.001(1)(E)External Link

  • failure to make a reasonable effort to prevent sexual conduct harmful to a child;

Texas Family Code §261.001(1)(F)External Link

  • compelling or encouraging the child to engage in sexual conduct as defined by §43.01External Link, Penal Code;

Texas Family Code §261.001(1)(G)External Link

  • causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by the Penal Code) or pornographic;

Texas Family Code §261.001(1)(H)External Link

  • causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child, as defined by §43.25External Link, Penal Code.

Texas Family Code §261.001(1)(K)External Link

2113.2 Definitions of Neglect

CPS September 2015

The Texas legislature established the overall definition of neglect. CPS has further divided neglect into five types. There is also an exclusion to the definition of neglect.

Abandonment (ABAN)

Abandonment refers to the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging the necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child.

Texas Family Code §261.001(4)(A)(i)External Link

Neglectful Supervision (NSUP)

Neglectful supervision is defined as:

  • placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child;

Texas Family Code §261.001(4)(A)(ii)(a)External Link

  • placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or

Texas Family Code §261.001(4)(A)(ii)(d)External Link

  • placing a child in or failing to remove the child from a situation in which the child would be exposed to acts or omissions that constitute abuse under Subdivision (1)(E), (F), (G), or (K) committed against another child.

Texas Family Code §261.001(4)(A)(ii)(e)External Link

Medical Neglect (MDNG)

Medical neglect is defined as the failure to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury, or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child.

Texas Family Code §261.001(4)(A)(ii)(b)External Link

Physical Neglect (PHNG)

Physical neglect is defined as the failure to provide a child with the food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused.

Texas Family Code §261.001(4)(A)(ii)(c)External Link

Refusal to Assume Parental Responsibility (RAPR)

Refusal to assume parental responsibility refers to a situation in which the person responsible for a child’s care, custody, or welfare fails to permit the child to return to the child’s home without arranging for the necessary care of the child after the child has been absent from the home for any reason, including having been in residential placement or having run away.

Texas Family Code §261.001(4)(A)(iii)External Link

Exclusion to Neglect

If a person responsible for a child’s care, custody, or welfare refuses to permit the child to remain in or return to the child’s home, it is not neglect if the:

  • child has a severe emotional disturbance;
  • person’s refusal is based solely on the person’s inability to obtain mental health services necessary to protect the safety and well-being of the child; and
  • person has exhausted all reasonable means available to the person to obtain the mental health services necessary to protect the safety and well-being of the child.

2114 Statutory Definition of Person Responsible for Child’s Care, Custody, or Welfare

CPS September 2002

Law

(5)  “Person responsible for a child’s care, custody, or welfare” means a person who traditionally is responsible for a child’s care, custody, or welfare, including:

(A)  a parent, guardian, managing or possessory conservator, or foster parent of the child;

(B)  a member of the child’s family or household as defined by Chapter 71External Link of this (TFC) code;

(C)  a person with whom the child’s parent cohabits;

(D)  school personnel or volunteers at the child’s school; or

(E)  personnel or a volunteers at a public or private child-care facility that provides services for the child or at a public or private residential institution or facility where the child resides.

Texas Family Code §261.001(5)External Link

2115 Terms Used in Primary Statutory Definitions

CPS 98-1

Rule

Absent parent — a parent [not in the home] who is not primarily responsible for the child’s care on an ongoing basis because of a divorce, separation, incarceration, or for some other reason.

Accident — An unforeseen event that causes or threatens physical injury despite prudent efforts to avoid the risk of injury.

Causing, permitting, encouraging, engaging in, or allowing the photographing — A condition of the statutory definition of sexual abuse. It is met whether or not the child participates voluntarily.

DFPS Rules, 40 TAC §700.501External Link(1)-(3) (Brackets added.)

Law

Child or Minor — A person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes. In the context of child support, “child” includes a person over 18 years of age for whom a person may be obligated to pay child support.

Texas Family Code §101.003External Link

Rule

Compelling or encouraging the child to engage in sexual conduct — A condition of the statutory definition of sexual abuse. It is met whether the child actually engages in sexual conduct or simply faces a substantial risk of doing so.

DFPS Rules, 40 TAC §700.501External Link(4)

Law

Family — Individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the biological parents of the same child, without regard to marriage, and a foster child and foster parent, whether or not those individuals reside together.

Texas Family Code §71.003External Link

Rule

Note: Consanguinity means related by blood or adoption. Affinity means related by an existing marriage.

DFPS Rules, 40 TAC §700.502External Link

Genuine threat — A verbal or behavioral expression of intent that appears true, likely, or believable. A substantial risk. Actions including, but not limited to, choking, suffocating, or shaking a child, or hitting a child on the head.

DFPS Rules, 40 TAC §700.501(5)External Link

Management Policy

Note: Consider the following factors to assess a threat (Apply them to determine if a threatened injury would result in substantial harm if it actually occurred.):

  1. the extent and severity of the threatened injury;
  2. the location of the threatened injury on the child’s body;
  3. the child’s age;
  4. the child’s ability to sustain the threatened injury without substantial harm, in light of the child’s physical condition, psychological functioning, and level of maturity;
  5. the frequency and duration of similar incidents;
  6. any previous history of abuse or neglect; and
  7. the way the threatened injury would occur.

Rule

Guardian — Anyone named as “guardian of the person of a child” by a probate court order.

DFPS Rules, 40 TAC §700.501(6)External Link

Law

Household — [The Texas Family Code defines household as] a unit composed of persons living together in the same dwelling, whether or not they are related to each other.

Texas Family Code §71.005External Link (Brackets added.)

Rule

Note: During the receipt and investigation of reports of child abuse and neglect, [DFPS] treats an unrelated person who resides elsewhere or whose place of residence cannot be determined as a member of the household if the person

  1. is at least 10 years old; and
  2. either
  3. has regular free access to the household; or
  4. when in the household dwelling, takes care of or assumes responsibility for children in the household.

DFPS Rules, 40 TAC §700.501(7)External Link

Management Policy

This clarification regarding unrelated persons applies to boyfriends and girlfriends of household members and to baby sitters, when they are in the home.

Rule

Managing or possessory conservator — A person responsible for a child as the result of a district court order pursuant to §153 of the Texas Family Code.

Necessary to sustain the life or health of the child — A condition of the statutory definition of physical neglect. It is met if the failure to provide food, clothing, or shelter results in an observable and material impairment to the child’s growth, development, or functioning, or in a substantial risk of such an observable and material impairment.

DFPS Rules, 40 TAC §700.501(9)-(10)External Link

Texas Family Code Ch. 153External Link

Law

Obscene — Material or a performance that

  1. the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
  2. depicts or describes
  3. patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
  4. patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
  5. taken as a whole, lacks serious literary, artistic, political, and scientific value.

Texas Penal Code §43.21(a)(1)External Link

Rule

Observable and material impairment — Discernible and substantial damage or deterioration.

DFPS Rules, 40 TAC §700.501(11)External Link

Law

Parent — The mother, a man presumed to be the biological father or who has been adjudicated to be the biological father by a court of competent jurisdiction, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated.

Texas Family Code §101.024External Link

Management Policy

Note: CPS distinguishes between the terms parent and absent parent. Unless otherwise stated, parent refers to the parent or parents primarily responsible for a child’s care, custody, or welfare on an ongoing basis.

Parent/caretaker — Synonymous with person responsible for a child’s care, custody, or welfare.

Rule

Pornographic — Containing an image that depicts a child under 18 at the time the image was made, who is involved in, performing, or simulating a sexually oriented act.

Reasonable discipline . . . that does not expose the child to a substantial risk of harm — Correction of a child’s behavior that does not result in or risk substantial harm from physical injury.

Reasonable effort to prevent — Actions that an ordinary and prudent person would take to stop an event from occurring.

DFPS Rules, 40 TAC §700.501External Link(12)-(14)

Management Policy

Sexual conduct — Sexual conduct includes, but is not limited to, any of the following:

Law

  • Sexual contact — Any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

Texas Penal Code §43.01(3)External Link

Management Policy

Note: Sexual contact includes, but is not limited to, touching the clothed or unclothed body directly or with an object.

Law

  • Sexual intercourse — Any penetration of the female sex organ by the male sex organ.

Texas Penal Code §43.01(5)External Link

  • Deviate sexual intercourse — Any contact between the genitals of one person and the mouth or anus of another person.

Texas Penal Code §43.01(1)External Link

Rule

Sexual assault — Any sexually oriented act or practice that results in harm or in substantial risk of harm to a child’s growth, development, or psychological functioning.

DFPS Rules, 40 TAC §700.501(15)External Link

Sodomy — Anal or oral copulation with another person or an animal.

DFPS Rules, 40 TAC §700.501(16)External Link

Incest — Any sexually oriented practice with a child by a person who knows or should know that he or she and the child are related by consanguinity or affinity.

DFPS Rules, 40 TAC §700.501(8)External Link

Substantial harm — Real and significant physical injury or damage to a child that includes, but is not limited to, bruises, cuts, welts, skull or other bone fractures, brain damage, subdural hematoma, internal injuries, burns, scalds, wounds, poisoning, human bites, concussions, and dislocations and sprains.

DFPS Rules, 40 TAC §700.501(17)External Link

Management Policy

Note: Consider the following factors to determine if an injury is substantial:

  1. the extent and severity of injury (size, number, depth, extent of discoloration, and so forth);
  2. the location of the injury on the child’s body;
  3. the child’s age;
  4. the child’s ability to sustain the injury without substantial harm, in light of the child’s physical condition, psychological functioning, and level of maturity;
  5. the frequency and duration of similar incidents;
  6. any previous history of abuse or neglect; and
  7. the way the injury occurred.

Rule

Substantial risk — Real and significant possibility or likelihood.

DFPS Rules, 40 TAC §700.501(18)External Link

Management Policy

Note: Consider the following factors to assess substantial risk:

  1. the child’s age;
  2. the child’s physical condition, psychological functioning, and level of maturity;
  3. any previous history of abuse or neglect;
  4. the frequency and duration of similar incidents;
  5. the physical condition, psychological functioning, and level of maturity of the person putting the child at risk; and
  6. any signs of danger or hazard in the child’s environment.

2116 Other Definitions

CPS March 2013

Born addicted

A child is considered born addicted to alcohol or a controlled substance under the following circumstances:

  • The child is born to a mother who, during the pregnancy, used:
  • alcohol; or
  • a controlled substance not legally obtained by prescription, as defined in Chapter 481External Link Health and Safety Code.

AND

  • The child, after birth, as a result of the mother’s use of a controlled substance or alcohol during pregnancy:
  • experiences observable withdrawal from the alcohol or controlled substance;
  • exhibits observable or harmful effects in the child’s physical appearance or functioning; or
  • exhibits the demonstrable presence of alcohol or a controlled substance in the child’s bodily fluids.

Texas Health and Safety Code, Chapter 481External Link

Texas Family Code §261.001(8)External Link

Case name

The name chosen to identify a case is the name of the parent or guardian who is primarily responsible for a child’s care, custody, or welfare on an ongoing basis.

If the parents live together, the case name is the name of the mother.

Day

A calendar day, unless otherwise noted.

Primary allegation

The allegation type, at intake, that:

  • appears to cause the most immediate threat to the child; and
  • appears to be the first allegation to consider when assessing a child’s safety.

Principal sources

These are also referred to as principals.  A term that includes:

  • a child alleged or found to be the victim of abuse or neglect by a parent or caregiver and all other children who live in the home;
  • all parents and caregivers who are part of the household, those who are appointed by the court as sole or joint managing conservators and live with the child;
  • everyone responsible for the care, custody, or welfare of the children in the family or household, even if not a parent or caregiver, including others appointed by the court as managing or possessory;
  • each alleged or designated perpetrator of child abuse or neglect;
  • each victim who is also a perpetrator of child abuse or neglect;
  • noncustodial parents whose location is determined during the investigation, regardless of whether they visit the child, and whose rights have not been terminated; and
  • all persons age 14 and older who live with the child as the result of a parental child safety placement.

Principal sources, must be added to the Person List page in IMPACT.

Persons included in a case are referred to as principals or collaterals.

Protective capacities

The cognitive, behavioral, and emotional characteristics specifically and directly associated with a caregiver’s ability to protect his or her child.

A caregiver’s protective capacity can be observed, understood, and demonstrated in part by the way in which the caregiver thinks about, feels for, and acts toward a particular child in regard to keeping the child safe. A caseworker’s understanding of whether a child is safe is incomplete without an assessment of the protective capacities of the child’s caregivers.

Cognitive protective capacities

These include the knowledge, understanding, and perceptions that contribute to protective behavior, as follows:

  • The caregiver thinks about and can articulate a plan to protect the child from a given person or situation
  • The caregiver has adequate knowledge to fulfill caregiving responsibilities and tasks
  • The caregiver has adequate perceptions of the child’s abilities and needs.

Behavioral protective capacities

These include a caregiver’s actions, activities, and performance that result in protection of a child, as follows:

  • The caregiver obtains and uses the resources necessary to meet the child’s needs.
  • The caregiver sets aside his or her needs in favor of the child’s.
  • The caregiver has demonstrated a history of protecting the child or other children.

Emotional protective capacities

These include a caregiver’s feelings for, attitudes about, and identification with the child, as well as the caregiver’s motivation for protective vigilance, as follows:

  • The caregiver is able to meet her or his own emotional needs.
  • The caregiver expresses love, empathy, and sensitivity toward the child.
  • The caregiver has the emotional capacity to intervene in order to protect a child.

Risk factors

Elements of individual and family functioning that may place a child at risk of abuse or neglect.

DFPS Rules, 40 TAC §700.502(5)External Link

Risk of child abuse or neglect

Risk of future abuse or neglect

A reasonable likelihood that child abuse or neglect, as defined in 2112 Primary Statutory Definitions, will occur in the foreseeable future.

DFPS Rules, 40 TAC §700.502(6)External Link

The risk of future abuse or neglect is not considered abuse or neglect under Texas Family Code §261.001External Link, Definitions; however, the presence of a reasonable likelihood that child abuse or neglect will occur in the foreseeable future qualifies children and families for protective services. See 1240 General Eligibility Criteria for Child Protective Services.

Substantial risk of harm

The definitions of abuse and neglect under Texas Family Code §261.001External Link, contemplate both actual harm and the genuine threat or substantial risk of harm to a child. DFPS treats acts and omissions that place children at substantial risk of harm or that pose a genuine threat of substantial harm as actual occurrences of abuse or neglect, as they are defined in Texas Family Code §261.001External Link. Therefore, a CPS investigation may result in a finding of Reason to Believe for abuse or neglect even if a child victim does not suffer from actual physical or mental harm.

The terms substantial risk of harm and genuine threat of substantial harm as used in the definitions of abuse and neglect refer to acts or omissions that have already occurred and that put a child at risk of harm:

Example: DFPS considers the following to be an occurrence of neglectful supervision – even if the child is not physically harmed:

A parent leaves a two-year-old child in a car while the parent goes inside the post office on a day when the temperature outside is around 80 degrees. The parent is gone for more than 10 minutes and, during that time, the car windows are only slightly cracked and the child is strapped into a car seat.

CPS issues a finding of neglectful supervision (NSUP) against the parent because:

  • the parent placed the toddler in a situation that the child is not mature enough to handle; and
  • the parent’s actions exposed the child to a substantial risk of immediate harm from possible kidnapping and heat.

A determination of whether a child was exposed to a genuine threat of substantial harm, a substantial risk of physical or mental harm, or a substantial risk of immediate harm is situational and is highly dependent on the unique set of facts in any given investigation.

Safety – A child’s safety

Protection of a child from abuse or neglect.

DFPS Rules, 40 TAC §700.502(2)External Link

A safe child

Children are considered safe when:

  • there are no safety threats within the family; or
  • the child is not vulnerable to the safety threat; or
  • a parent or caregiver possesses sufficient protective capacity to manage any safety threats.

An unsafe child

Children are considered unsafe when:

  • safety threats exist within the family, and
  • children are vulnerable to such threats, and
  • parents have insufficient protective capacities to manage or control the safety threats.

Safety threats

Safety threats are dynamics, conditions, or situations in a home that alone, or in combination, could indicate or contribute to an existing or developing danger for children. Fourteen specific safety threats are identified. The danger for children may be classified as Present or Impending.

Present danger

One of two types of danger that may be present in a family situation (the other is Impending danger).

Present danger:

  • is severe harm or the threat of severe harm that is immediate, significant, and clearly observable; and
  • is occurring to a child in the present (currently occurring) or has occurred very recently; and
  • requires an immediate protective response.

Impending danger

One of two types of danger that may be present in a family situation (the other is Present danger). Impending danger refers to threats to the safety of a child that reasonably will result in serious harm if a safety intervention by either the family or DFPS does not occur or does not continue over time.

Impending danger exists when:

  • a child is living in a state of danger (that is, continual danger); and
  • the family’s conditions, behaviors, attitudes, motives, emotions, or situations are out of control;

Impending danger may not exist at any one particular moment, but can be anticipated to have serious effects on a child at any time; that is, a state of danger exists and the child may be harmed at any moment. Impending danger is not always obvious or occurring at the onset of CPS intervention or in the present context.

Identifying and understanding safety threats is possible only after fully evaluating the individuals or family’s conditions and functioning.

Safety threshold

The safety threshold is the point at which a family’s condition, behavior, or situation leads to a child being unsafe; that is, when risk factors become safety threats. It is the point along the continuum at which a child is considered unsafe rather than safe.

The safety threshold is crossed when a family’s behaviors, conditions, or situations:

  • become directly threatening to child safety; AND
  • protective capacities are not sufficient.

Five criteria are essential to determining the Safety Threshold for a particular child:

  • Out-of-control: Refers to family conditions that can affect a child and are unrestrained, unmanaged, or without limits or effective monitoring; that is, conditions that a family does not seem able to influence, manipulate, or control without intervention from an outside source.
  • Severity: The degree to which harm could result in significant pain, serious injury, disability, grave or debilitating health or physical conditions, acute or grievous suffering, terror, impairment, or death.
  • Child vulnerability: The degree to which a child depends on others for protection or can verbalize a need for protection from a specific safety threat to those who are able to intervene in order to keep the child safe.
  • Specific time frame: The degree to which the threat to a child’s safety is likely to become a present danger without delay and the degree of certainty that an event may occur either immediately or in the near future and may have severe effects on a child.
  • Observable and specific: The degree to which a danger is real, can be observed, can be reported, and is explicit and unambiguous.

Sensitive case

A case to which limited access is granted in IMPACT for various reasons, including, but not limited to, the following:

  • A DFPS employee is alleged or found to be involved in a case of abuse or neglect.
  • A person who provides ancillary services for CPS, such as a county judge, an attorney ad litem, a law enforcement officer, or a volunteer with Texas Court Appointed Special Advocates (CASA), is alleged or found to be involved in a case of abuse or neglect.
  • A situation attracts excessive media coverage or other undue interest because of a circumstance such as the death of a child or the actions of a DFPS employee.
  • A minor seeks or has had an abortion without informing her family.
  • A member of a child’s household is a participant in the Office of the Attorney General’s (OAG) Address Confidentiality Program (see Chapter 56, Subchapter CExternal Link, Texas Code of Criminal Procedure).

Serious physical abuse

Injuries that:

  • require or required prompt medical attention;
  • may require hospitalization; and
  • may endanger the child’s life or cause permanent functional impairment, death, or disfigurement if untreated.

DFPS Rules, 40 TAC §700.502(7)External Link

Serious sexual abuse

Serious sexual abuse is:

  • oral, anal, or genital intercourse; or
  • sexual acts performed with a child that involve:
  • the genitals or anus of either party, whether or not intercourse or contact occurred; or
  • touching or fondling of the genitals, breasts, or anus of either party.

DFPS Rules, 40 TAC §700.502(8)External Link

Special handling

The special or extra duties or procedures required by a caseworker when a member of a child’s household:

  • participates in the Office of the Attorney General’s (OAG) Address Confidentiality Program (see Chapter 56, Subchapter CExternal Link, Texas Code of Criminal Procedure and 2230 Requirements to Protect Locating Information of Family Violence Victims);
  • serves with a military branch, either active or retired;
  • works in law enforcement;
  • lives on an American Indian reservation (see 1225 Indian Child Welfare Act; or
  • is listed on the Child Safety Check Alert List as the result of a court order.

Strengths

The elements of an individual’s or a family’s functioning that enhance the ability of the individual or family to protect a child from abuse or neglect. See DFPS Rules, 40 TAC §700.502External Link(9).Within protective capacities, strengths specifically relate to the ability of a caregiver to use his or her protective capacities to ensure the child’s safety.

Vulnerable child

Children are considered vulnerable when they lack the ability to protect themselves, or seek help from other protective persons when faced with a safety threat.

A caseworker determines whether a child is vulnerable by evaluating the following, as appropriate:

  • Age of the child
  • Physical disability
  • Mental disability
  • Medical illness
  • Intellectual disability
  • Behavior
  • Self concept, or the degree to which the child may be subject to intimidation, fear, and emotional manipulation
  • Assertiveness, or the child’s ability to make his or her basic needs known and seek help or protection from others
  • Defensive capacity, or the ability of the child to perceive danger and act accordingly
  • Isolation, or the degree to which the child is seen by others in the community, including by extended family members

DFPS Rules, 40 TAC §700.502External Link

 

2140 Screening an Intake for Investigation

2141 Screening and Prioritizing Reports of Abuse or Neglect

CPS August 2009

DFPS staff must screen every call and must review every report alleging child abuse and neglect to assure that DFPS provides accurate advice, correct referrals, timely and appropriate investigations, and effective interventions. CPS avoids unwarranted intrusion into a child’s life and the lives of the child’s family members; however, the need to protect the child remains DFPS’s primary concern.

In general, CPS accepts reports for investigation only when:

  •  DFPS appears to be the responsible department under the law, and

  •  the child’s apparent need for protection warrants an investigation.

Types of Reports

CPS is authorized by state law to investigate certain situations involving abuse or neglect of children.

When a Report Meets the Criteria for Investigation

If a report received by the DFPS Statewide Intake (SWI) Division meets the statutory definitions under which CPS is authorized to investigate abuse or neglect, the intake worker handles the report as an intake of abuse or neglect.

For guidelines on how to properly assess an intake, see Appendix 2140: Guidelines for Decision Making at Intake.

When a Report Does Not Meet the Criteria for Investigation

If a report received by SWI does not meet the statutory definitions under which CPS is authorized to investigate, the intake worker cannot handle the report as an intake.

Reports that are not considered intakes of abuse or neglect are documented and classified as one of the following:

  •  Special Request (Administrative)

  •  Casework Related Special Request

  •  Information and Referral (I&R)

For an explanation of how SWI handles reports not accepted as intakes, see the SWI Policy and Procedures Handbook,2320 Special Requests and Information and Referrals (I&Rs).

2142 The Allegations That CPS Accepts for Investigation and Assessment

2142.1 Criteria for Initiating an Investigation

CPS August 2009

To assess a child’s need for protection, the worker looks for information indicating that:

  •  the child has been abused or neglected and is in danger of further abuse or neglect; or

  •  there is a reasonable likelihood that the child will be abused or neglected in the foreseeable future.

When to Notify Law Enforcement

If an intake worker receives a report alleging that a child has been abused or neglected but the child is no longer in danger of further abuse or neglect, the worker forwards the report to law enforcement for possible criminal investigation.

2142.2 Applying Statutory Definitions of Abuse or Neglect to Determine if a Report Meets the Criteria for CPS Investigation

CPS August 2009

The terms and definitions in 2110 Definitions and Authority constitute the basis, in law and DFPS rule, for deciding whether to accept a report for investigation or refer it to law enforcement. The SWI worker applies the statutory definitions of abuse or neglect to determine whether a report meets the criteria for investigation by CPS.

DFPS also applies the terms and definitions when staff receive and investigate reports of child abuse and neglect. The following workers must be thoroughly familiar with the terms and definitions in 2110 Definitions and Authority and its subitems:

  •  Statewide Intake (SWI) workers

  •  SWI supervisors

  •  CPS supervisors

  •  CPS investigation screeners

For more detailed information, see:

  •  the statutory definitions of abuse, neglect, and person responsible for a child’s care, custody, or welfare, in 2112 Primary Statutory Definitions;

  •  the definitions in 2115 Terms Used in Primary Statutory Definitions; and

  •  the definitions of risk and other terms in 2116 Other Definitions.

For guidelines on determining what falls under the statutory definitions of abuse and neglect and within the definition of risk of abuse or neglect, see Appendix 2140: Guidelines for Decision Making at Intake. Staff may use the guidelines to support the decisions they make at intake.

Accept a Report on the Basis of Risk

CPS may accept a report for investigation and assessment on the basis of risk, even when there has not yet been an occurrence of abuse or neglect that meets the statutory definitions. A reasonable likelihood that abuse or neglect will occur in the foreseeable future is sufficient to warrant an investigation.

Accepting a Report on the Basis of Failing to Prevent Harm

CPS may also accept a report for investigation and assessment when individuals who are responsible for the child’s care, custody, or welfare have failed to make reasonable efforts to prevent the child from being harmed by another person, even if the other person is not responsible for the child’s care, custody, or welfare.

2142.3 Incomplete or Questionable Reports of Abuse or Neglect

CPS August 2009

The intake staff of the DFPS Statewide Intake (SWI) Division forward a report of abuse or neglect to CPS staff when the report appears to meet the statutory definitions of abuse or neglect that falls within CPS’s jurisdiction to investigate.

A report may not be forwarded to CPS for investigation if the report lacks detail or is questionable in some other way.

Reports That Lack Detail

Allegations of abuse or neglect often lack the information CPS needs to determine whether the report meets the statutory definitions of abuse or neglect.

For example, the reporter may not know:

  •  in what way a child was harmed;

  •  who caused the harm; or

  •  whether the person who caused the harm is responsible for the child’s care, custody, or welfare.

Reports That Are Questionable

Allegations reported to DFPS may appear to be of questionable accuracy.

Examples of questionable reports include:

  •  previous reports of abuse and neglect that have been determined to have fabricated allegations; or

  •  allegations made in a current report are inconsistent with the known circumstances found in a recently closed case.

Second Screening by CPS

If a report meets the statutory definitions of abuse or neglect that falls within CPS’s jurisdiction to investigate, CPS staff perform a secondary screening of the report following the guidelines in 2150 The Role of CPS in Screening Reports of Abuse or Neglect.

2142.4When Abuse or Neglect Occurs in a Foster or Adoptive Home

CPS August 2009

Acceptable for CPS Investigation

CPS investigates reports of abuse or neglect only when:

  •  the victim is a child who is not a foster or pre-consummated adoptive child; and

  •  the child is abused by a member of the child’s family or household.

If the two criteria above are met, CPS retains responsibility for investigating, even if:

  •  the victim is a child in kinship care;

  •  the alleged perpetrator is a foster or pre-consummated adoptive parent, or

  •  the alleged perpetrator is a foster or pre-consummated adoptive child, 10 years old or older.

Not Acceptable for CPS Investigation

CPS does not investigate a report of abuse or neglect when the victim:

  •  is a foster or pre-consummated adoptive child; or

  •  the child is abused by someone who is not a member of the child’s family or household.

See the Licensing Policy and Procedures Handbook 6530 Investigations in Child-Placing Agency (CPA) Homes and Child Protective Services (CPS) Homes:

Scenario

Example

A foster or pre-consummated adoptive parent living in the foster or adoption home abuses a minor who is a relative and is not a foster or pre-consummated adoptive child.

A foster or pre-consummated adoptive father abuses his birth daughter.

An adult who is living in the home of a foster or pre-consummated adoptive parent, but is not the foster or pre-consummated adoptive parent:

  •  abuses a child who is not a foster or pre-consummated adoptive child; and

  •  commits the abuse in the home.

A brother of the foster or pre-consummated adoptive father abuses the foster or pre-consummated adoptive father’s birth daughter.

An adult who is living in the home of a foster or pre-consummated adoptive parent, but is not the foster or pre-consummated adoptive parent:

  •  abuses a child who is related to the adult (the alleged perpetrator), and who is not a foster or pre-consummated adopted child; and

  •  commits the abuse outside the home.

A brother of the foster or pre-consummated adoptive father abuses the foster or pre-consummated adoptive parents’ birth daughter and the abuse occurs during an outing at the park.

A foster or pre-consummated adoptive parent who is related to a foster or pre-consummated adopted child abuses that foster or pre-consummated adoptive child.

An adult becomes the foster or pre-consummated adoptive parent of his or her niece and abuses the niece.

See the Licensing Policy and Procedures Handbook 6530 Investigations in Child-Placing Agency (CPA) Homes and Child Protective Services (CPS) Homes.

2142.5 Reports of Abuse or Neglect That Relate to Child-Care Facilities

CPS August 2009

Allegation

Does CPS Investigate?

The caretaker of a day care facility has abused or neglected his or her own children in the facility or in the family home.

Yes

While investigating a report of abuse or neglect at a child-care facility, Licensing uncovers evidence that the abuse or neglect may have occurred in the child’s home.

Yes.

Licensing staff continue to be responsible for investigating the child care facility.

CPS staff:

  •  determine whether there is a need to conduct an investigation in the child’s home; and

  •  conduct the investigation, if an investigation is needed.

While investigating a report of abuse or neglect at a child-care facility, Licensing staff determine:

  •  that the parent or managing conservator of a child who is an alleged victim is unable or unwilling to protect the child from further harm, or

  •  that other children in the facility may be at risk of harm,

Yes.

CPS staff do as follows:

  •  If the CPS worker and supervisor determine that the risk of harm or danger remains despite the planned actions, staff immediately notify the regional director for families and children.

  •  If CPS determines that all children in the facility are sufficiently in danger and that emergency removal ex parte orders are needed, the regional director must immediately notify the director of protective services for families and children.

See the Licensing Policy and Procedures Handbook, 6530 Investigations in Child-Placing Agency (CPA) Homes and Child Protective Services (CPS) Homes.

2143 Assigning Priority to Reports of Abuse or Neglect

CPS August 2014

The DFPS Statewide Intake (SWI) Division suggests the appropriate priority for reports of abuse or neglect, based on the information available at the time that the report is accepted.

The final priority is assigned by CPS, based on CPS’s assessment of:

  •  the immediacy of the risk; and

  •  the severity of the possible harm to the child.

See DFPS Rules, 40 TAC §700.505External Link

2143.1 Assigning a Report as Priority 1 (P1)

CPS August 2014

The following reports qualify for assignment as P1:

  •  A report that a child appears to face an immediate threat to his or her safety or is in immediate risk of abuse or neglect that could result in death or serious harm.

  •  Any report alleging abuse or neglect that is received within 12 months after a previous investigation was closed as Unable to Complete. In such a case, the report is not downgraded. The report must remain a Priority 1 and must be investigated.

  •  A report involves a child’s death that has never been investigated and there is a clear allegation that the child’s death was the result of alleged abuse or neglect, even if there are no other children in the home. (In the SWI Policy and Procedures Handbook, see 4420 Child Death Reports Under CPS Jurisdiction.)

2143.11 Examples of Priority 1 (P1) Reports

CPS August 2014

Examples of priority 1 reports are as follows (the list is not exhaustive):

  •  A child dies, allegedly from abuse or neglect. In this case, the report is a priority 1 whether or not other children remain in the family or household.

  •  A child in CPS conservatorship dies. In this case, the report is a priority 1, even when the death is clearly not attributable to abuse or neglect.

  •  A child has sustained a serious physical injury from alleged abuse or neglect.

  •  A preschool child is injured, the explanation is inconsistent with the injury, and the family’s history makes the explanation less credible.

  •  A child appears to have failure-to-thrive syndrome or is severely malnourished from alleged neglect.

  •  A child is alleged to have been sexually abused and is in immediate danger of further abuse.

  •  A preschool-aged child is left alone.

  •  A child is abandoned or totally without parental supervision, family resources, personal resources, or community support. No responsible adult is close by to offer limited supervision, and the child is in immediate danger of serious physical harm.

  •  A child is in immediate danger of death or serious physical harm because the child lacks basic physical necessities or medical attention as a result of alleged neglect.

  •  A child’s caretaker behaves in a bizarre, psychotic, or extremely intoxicated or drugged manner and abuse or neglect is alleged.

  •  A child is in serious distress or danger as a result of being chained, tied, confined, or left unattended.

  •  A child who is six years old or younger sustains a serious head injury, and the alleged perpetrator maintains access to the child.

2143.12 When a Priority 1 (P1) Report Is Received After-Hours

CPS August 2014

When a Priority 1 (P1) report is received outside normal work hours, SWI staff must forward the report to the appropriate on-call CPS staff. (SWI staff do not forward after-hours reports to CPS offices.)

2143.2 Assigning a Report as Priority II (P2)

CPS August 2014

If a report of abuse or neglect is accepted for investigation but does not meet the criteria for being assigned as a Priority I, then it is assigned as a Priority II.

2143.3 Assigning a Report as Priority None (PN)

CPS August 2014

There are three situations in which a report may be classified as Priority None (PN).

Scenario I: Review by SWI

A report may be classified as a PN when Statewide Intake determines that the report meets one of the following two criteria.

1.   There is a history of abuse or neglect, but no current or foreseeable risk.

      An incident of abuse or neglect may have met legal definitions at the time that the past incident occurred, but at the time of the new intake report, there are no current safety concerns and there is no known risk of recurrence in the foreseeable future.

      For example, a child reports that she was sexually abused by an uncle six years ago. The parents are protective. The uncle lives in a nursing home and has no access to the child.

OR

2.   Essential information is needed from a specific collateral or principal source to determine whether an assignable allegation of abuse or neglect exists.

      In this situation, the CPS screener must attempt to contact the source to obtain additional information.

Scenario 2: Review by a CPS Screener

A report may be classified as a PN when the CPS screener determines that the intake report:

  •  does not meet the criteria for an investigation; and

  •  intervention by DFPS is not needed.

See 2156 Closing Reports of Abuse or Neglect Without Assignment for Investigation.

Scenario 3: Review by a CPS Supervisor

A report may be classified as a PN when a CPS supervisor determines that an investigation is not needed and therefore downgrades the report to a PN.

See:

2151 The CPS Supervisor’s Role in Screening Reports of Abuse or Neglect

2156.1 Reports of Abuse or Neglect That Require Supervisory Approval for Closure.

 

2144 The Role of SWI in Screening Reports of Abuse or Neglect

CPS August 2009

The role of the DFPS Statewide Intake (SWI) Division in handling reports of abuse or neglect is to:

  •  screen each report of abuse and neglect that is received;

  •  assign each report an initial priority, based on whether the report meets the criteria to be forwarded to CPS for review or investigation or should be closed without being forwarded (see 2143 Assigning Priority to Reports of Abuse or Neglect);

  •  notify law enforcement, when appropriate (see 2136 When to Notify Law Enforcement About Reports of Abuse or Neglect);

  •  notify the person making the report, when the report does not meet the criteria to be forwarded to CPS; and

  •  route to the appropriate CPS offices the reports that meet the criteria for being forwarded.

Priority None (PN) Reports That Require Review by Field Staff

In certain circumstances, SWI staff refer PN reports to CPS to be considered for investigation. The circumstances include:

  •  the report contains limited locating information;

  •  the investigation history is pertinent to the current risk;

  •  a child age 5 or younger lives in the home;

  •  additional calls are needed to determine whether an investigation is needed;

  •  the report was made by CPS staff;

  •  the case is sensitive or high profile;

  •  an open case on a family; or

  •  the criteria for the case makes it borderline (potentially classifiable as a priority 2).

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

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

7th Circuit

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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.

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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

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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.

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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

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

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

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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.  

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

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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

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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