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

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

Utah

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: The term ‘in the presence of a child’ means:

  • In the physical presence of a child
  • Having knowledge that a child is present and may see or hear an act of domestic violence
Consequences

A person commits domestic violence in the presence of a child if the person:

  • Commits or attempts to commit criminal homicide against a cohabitant in the presence of a child
  • Intentionally causes serious bodily injury to a cohabitant or uses a dangerous weapon or other means or force likely to produce death or serious bodily injury against a cohabitant in the presence of a child
  • Under circumstances not amounting to criminal homicide or serious bodily injury as described above, commits an act of domestic violence in the presence of a child

A person who violates either of the first two subsections is guilty of a third-degree felony. A person who commits domestic violence in the presence of a child is guilty of a Class B misdemeanor.

A charge under this section is separate and distinct from, and is in addition to, a charge of domestic violence where the victim is the cohabitant. Either or both charges may be filed by the prosecutor.

A person who commits a violation of this section when more than one child is present is guilty of one offense of domestic violence in the presence of a child regarding each child present when the violation occurred.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means:

  • Nonaccidental harm of a child
  • Threatened harm of a child
  • Sexual exploitation
  • Sexual abuse
  • Human trafficking of a child in violation of § 76-5-308.5
  • That a child’s natural parent:
    • Intentionally, knowingly, or recklessly causes the death of another parent of the child
    • Is identified by a law enforcement agency as the primary suspect in an investigation for intentionally, knowingly, or recklessly causing the death of another parent of the child
    • Is being prosecuted for or has been convicted of intentionally, knowingly, or recklessly causing the death of another parent of the child

‘Abused child’ means a child who has been subjected to abuse.

‘Harm’ means:

  • Physical or developmental injury or damage
  • Sexual abuse or sexual exploitation

‘Physical abuse’ means abuse that results in physical injury or damage to a child.

‘Severe abuse’ means abuse that causes or threatens to cause serious harm to a child.

Neglect

‘Neglect’ means:

  • Lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian
  • Failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence, education, or medical care, or any other care necessary for the child’s health, safety, morals, or well-being
  • A child at risk of being neglected or abused because another child in the same home is neglected or abused

‘Neglected child’ means a child who has been subjected to neglect.

‘Severe neglect’ means neglect that causes or threatens to cause serious harm to a child.

Sexual Abuse/Exploitation

‘Sexual abuse’ means:

  • An act or attempted act by an adult of sexual intercourse, sodomy, incest, or molestation directed toward a child
  • An act or attempted act of sexual intercourse, sodomy, incest, or molestation committed by a child towards another child if:
    • There is an indication of force or coercion.
    • The children are related.
    • There have been repeated incidents of sexual contact between the two children, unless the children are age 14 or older.
    • There is a disparity in chronological age of 4 or more years between the two children.
  • Engaging in any conduct with a child that would constitute an offense under any of the following terms, regardless of whether the person who engages in the conduct is actually charged with or convicted of the offense:
    • Any sexual offense
    • Child bigamy
    • Incest
    • Lewdness or sexual battery
    • Lewdness involving a child
    • Voyeurism

‘Sexual exploitation’ means knowingly:

  • Employing, using, persuading, inducing, enticing, or coercing any child to:
    • Pose in the nude for the purpose of sexual arousal of any person
    • Engage in any sexual or simulated sexual conduct for the purpose of photographing, filming, recording, or displaying in any way the sexual or simulated sexual conduct
  • Displaying, distributing, possessing for the purpose of distribution, or selling material depicting a child:
    • In the nude, for the purpose of sexual arousal of any person
    • Engaging in sexual or simulated sexual conduct
  • Engaging in conduct that would constitute an offense under § 76-5b-201, Sexual Exploitation of Children, regardless of whether the person who engages in the conduct is actually charged with or convicted of the offense

‘Incest’ means engaging in sexual intercourse with a person whom the perpetrator knows to be his or her ancestor, descendant, brother, sister, uncle, aunt, nephew, niece, or first cousin, including a stepparent and stepchild while the marriage creating the relationship exists.

‘Molestation’ means that a person, with the intent to arouse or gratify the sexual desire of any person:

  • Touches the anus or any part of the genitals of a child
  • Takes indecent liberties with a child
  • Causes a child to take indecent liberties with the perpetrator or another
Emotional Abuse

‘Harm’ includes emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.

‘Mental disorder’ means a serious emotional and mental disturbance that severely limits a minor’s development and welfare over a significant period of time.

Abandonment

Citation: Ann. Code § 78A-6-105
The term ‘neglect’ includes abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn Child.

Standards for Reporting

Citation: Ann. Code § 62A-4a-403
A report is required when a mandatory reporter has reason to believe that a child has been subjected to abuse or neglect or observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

Persons Responsible for the Child

‘A person responsible for a child’s care’ means the child’s parent, guardian, or other person responsible for the child’s care, whether in the same home as the child; a relative’s home; a group, family, or center daycare facility; a foster care home; or a residential institution.

Exceptions

The term ‘abuse’ does not include:

  • Reasonable discipline or management of a child, including withholding privileges
  • The use of reasonable and necessary physical restraint or force on a child in self-defense, in defense of others, to protect the child, or to remove a weapon in the possession of a child in self-defense or defense of others

A parent or guardian legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child is not guilty of neglect. A health-care decision made for a child by the child’s parent or guardian does not constitute neglect unless the State or other party to the proceeding shows by clear and convincing evidence that the health-care decision is not reasonable and informed. Nothing in this subsection may prohibit a parent or guardian from exercising the right to obtain a second health-care opinion.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means intentionally or knowingly causing or attempting to cause a cohabitant physical harm or intentionally or knowingly placing a cohabitant in reasonable fear of imminent physical harm.

‘Domestic violence’ means the same as that term is defined in § 77-36-1.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic violence’ means any criminal offense involving violence or physical harm or threat of violence or physical harm or any attempt, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm when committed by one cohabitant against another. ‘Domestic violence’ also means commission or attempt to commit any of the following offenses by one cohabitant against another:

  • Assault or aggravated assault
  • Criminal homicide
  • Harassment
  • Electronic communication harassment
  • Kidnapping, child kidnapping, or aggravated kidnapping
  • Mayhem
  • Sexual offenses, as described in title 76, chapter 5, part 4, Sexual Offenses, and § 76-5b-201, Sexual Exploitation of a Minor
  • Stalking
  • Unlawful detention or unlawful detention of a minor
  • Violation of a protective order or ex parte protective order
  • Any offense against property, including property destruction, burglary, criminal trespass, or robbery
  • Possession of a deadly weapon with intent to assault
  • Discharge of a firearm from a vehicle, near a highway, or in the direction of any person, building, or vehicle
  • Disorderly conduct
  • Child abuse, as described in § 76-5-109.1
Persons Included in the Definition

In criminal law: ‘Cohabitant’ has the same meaning as in § 78B-7-102.

In civil law: ‘Cohabitant’ means an emancipated person, pursuant to § 15-2-1, or a person who is age 16 or older who:

  • Is or was a spouse of the other party
  • Is or was living as if a spouse of the other party
  • Is related by blood or marriage to the other party
  • Has or had one or more children in common with the other party
  • Is the biological parent of the other party’s unborn child
  • Resides or has resided in the same residence as the other party

‘Cohabitant’ does not include:

  • The relationship of natural parent, adoptive parent, or stepparent to a minor
  • The relationship between natural, adoptive, step, or foster siblings who are under age18

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Except as otherwise provided in this chapter, reports made pursuant to this part, as well as any other information in the possession of the division obtained as the result of a report, are private, protected, or controlled records.

Persons or Entities Allowed Access to Records

The reports may only be made available to:

  • A police or law enforcement agency investigating a report
  • A physician who reasonably believes that a child may be abused or neglected
  • An agency that has responsibility or authority to care for, treat, or supervise a child who is the subject of a report
  • A provider that has a written contract with the division to render services to a child who is the subject of a report
  • Except as provided in § 63G-2-202, any subject of the report, the natural parents of the child, and the guardian ad litem
  • A court when it is necessary for the determination of an issue before it
  • An office of the public prosecutor or its deputies in performing an official duty
  • A person authorized by a Children’s Justice Center
  • A person engaged in bona fide research
  • Any person identified in the report as a perpetrator or possible perpetrator of abuse or neglect
  • Except as provided in § 63G-2-202, a person filing a petition for a child protective order on behalf of a minor who is the subject of the report
  • A licensed child-placing agency or person who is performing a preplacement adoptive evaluation

When the division makes a report or other information available to a subject of the report or a parent of a child, the division shall remove from the report only the names, addresses, and telephone numbers of individuals or specific information that could:

  • Identify the referent
  • Impede a criminal investigation
  • Endanger a person’s safety

As provided by § 63G-2-202, a record contained in the Management Information System, created in § 62A-4a-1003 [to contain child abuse and neglect records], that is found to be unsubstantiated, unsupported, or without merit may not be disclosed to any person except the person who is alleged in the report to be a perpetrator of abuse, neglect, or dependency.

When Public Disclosure of Records is Allowed

This issue is not addressed in the statutes reviewed.

Use of Records for Employment Screening

Reports and records may be made available to the State Office of Education, acting on behalf of itself or on behalf of a school district, for the purpose of evaluating whether an individual should be permitted to obtain or retain a license as an educator or serve as an employee or volunteer in a school. This disclosure is limited to information with substantiated findings involving an alleged sexual offense, an alleged felony or class A misdemeanor drug offense, or any alleged offense against the person. The office must provide the subject of a report with an opportunity to respond to the report before making a decision concerning licensure or employment.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Immunity is not lost under § 62A-4a-410 if the person, official, or institution:

  • Failed to disclose evidence because the person, official, or institution is prohibited by law from disclosing the evidence
  • Pursuant to the provisions of 45 Code of Federal Regulation 164.502(g)(5) [pertaining to the disclosure of protected health information], refused to disclose evidence to a person who requested the evidence
  • After refusing to disclose the evidence described above, complied with or responded to a valid court order or valid subpoena received by the person, official, or institution to disclose the evidence

Except as provided below, any person, official, or institution participating in good faith in making a report, taking photographs or x-rays, assisting an investigator from the division, serving as a member of a child protection team, or taking a child into protective custody pursuant to this part, is immune from any liability, civil or criminal, that otherwise might result by reason of those actions.

This section does not provide immunity with respect to acts or omissions of a governmental employee except as provided in Title 63G, Chapter 7, Governmental Immunity Act of Utah.

The immunity described above does not apply if the person, official, or institution:

  • Acted or failed to act through fraud or willful misconduct
  • Intentionally or knowingly gave, upon a lawful oath or in any form allowed by law as a substitute for an oath, false testimony material to the issue or matter of inquiry in a judicial or administrative proceeding
  • Intentionally or knowingly fabricated evidence or, except as provided in § 62A-4a-410(4), with a conscious disregard for the rights of others, failed to disclose evidence that:
    • Was known to the person, official, or institution
    • Was known by the person, official, or institution to be relevant to a material issue or matter of inquiry in a pending judicial or administrative proceeding if the person, official, or institution knew of the pending judicial or administrative proceeding
    • Was known by the person, official, or institution to be relevant to a material issue or matter of inquiry in a judicial or administrative proceeding, if disclosure of the evidence was requested of the employee by a party to the proceeding or counsel for a party to the proceeding

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

When a mandated reporter has reason to believe that a child has been subjected to abuse or neglect, or who observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect, he or she shall immediately notify a peace officer, a law enforcement agency, or the Division of Child and Family Services.

Content of Reports

The report shall include the reporter’s observations of the conditions or circumstances of the child that led to the suspicion that the child was being abused or neglected.

Reporting Suspicious Deaths

Any person who has reason to believe that a child has died as a result of abuse or neglect shall report that fact to:

  • The local law enforcement agency, who shall report to the county attorney or district attorney
  • The appropriate medical examiner

The medical examiner shall investigate and report his or her findings to the police, the appropriate county attorney or district attorney, the Attorney General’s Office, the division, and if the institution making the report is a hospital, to that hospital.

Reporting Substance-Exposed Infants

When an individual, including a licensee under the Medical Practice Act or the Nurse Practice Act, attends the birth of a child or cares for a child, and determines that the child, at the time of birth, has fetal alcohol syndrome, fetal alcohol spectrum disorder, or fetal drug dependency, he or she shall report that determination to the division as soon as possible.

Agency Receiving the Reports

The division will maintain a system for receiving referrals or reports about child abuse, neglect, or dependency. The system shall supply workers with a complete previous division history for each child, including siblings, foster care episodes, all reports of abuse, neglect, or dependency, treatment plans, and casework deadlines.

Initial Screening Decisions

The division shall make a thorough preremoval investigation upon receiving either an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency, when there is reasonable cause to suspect that a situation of abuse, neglect, fetal alcohol syndrome, or fetal drug dependency exists. The primary purpose of the investigation shall be protection of the child.

In regulation: Child and Family Services establishes Child Protective Services (CPS) priority timeframes as follows:

  • A Priority 1 response shall be assigned when the child referred is in need of immediate protection.
  • A Priority 2 response shall be assigned when physical evidence is at risk of being lost or the child is at risk of further abuse, neglect, or dependency, but the child does not have immediate protection and safety needs, as determined by the intake checklist.
  • A Priority 3 response shall be assigned when potential for further harm to the child and the loss of physical evidence is low.
Agency Conducting the Assessment/Investigation

The division shall use an interdisciplinary approach, when appropriate, in dealing with reports of abuse or neglect. For this purpose, the division shall convene appropriate interdisciplinary ‘child protection teams’ to assist it in its protective, diagnostic, assessment, treatment, and coordination services. A representative of the division shall serve as the team’s coordinator and chair. Whenever possible, the team shall include representatives of:

  • Health, mental health, education, and law enforcement agencies
  • The child
  • The parent and family support groups unless the parent is alleged to be the perpetrator
  • Other appropriate agencies or individuals

If a report of neglect is based upon or includes an allegation of educational neglect, the division shall immediately consult with school authorities to verify the child’s status.With regard to cases in which law enforcement has or is conducting an investigation of alleged abuse or neglect of a child:

  • The division shall coordinate with law enforcement to ensure that there is an adequate safety plan to protect the child from further abuse or neglect.
  • The division is not required to duplicate an aspect of the investigation that, in the division’s determination, has been satisfactorily completed by law enforcement.
Assessment/Investigation Procedures

The division’s investigation shall conform to reasonable professional standards and shall include:

  • A search for and review of any records of past reports of abuse or neglect involving the same child, any sibling or other child residing in the same household as the child, and the alleged perpetrator
  • With regard to a child who is age 5 or older, a personal interview with the child outside of the presence of the alleged perpetrator
  • If a parent or guardian can be located, an interview with at least one of the child’s parents or guardian
  • An interview with the person who reported the abuse unless the report was made anonymously
  • When possible and appropriate, interviews with other third parties who have had direct contact with the child, including school personnel and the child’s health-care provider
  • An unscheduled visit to the child’s home unless:
    • There is a reasonable basis to believe that the reported abuse was committed by a person who is not the child’s parent and does not live in the child’s home or otherwise have access to the child in the child’s home.
    • An unscheduled visit is not necessary to obtain evidence for the investigation.
  • If appropriate and indicated in any case alleging physical injury, sexual abuse, or failure to meet the child’s medical needs, a medical examination, obtained no later than 24 hours after the child is placed in protective custody
Timeframes for Completing Investigations

CPS shall respond to reports according to the priority timeframes as follows:

  • For a Priority 1 report, intake will begin to collect information immediately after the completion of the initial contact from the reporter and, as soon as possible thereafter, obtain additional information and assign the case to the CPS worker. The CPS worker has, as a standard, 60 minutes from the time of assignment to initiate efforts to make face-to-face contact with an alleged victim. For a Priority 1R (rural) referral, the worker has, as a standard, 3 hours to initiate efforts to make face-to-face contact if the alleged victim is more than 40 miles away.
  • For a Priority 2 report, intake will begin to collect information as soon as possible after the completion of the initial contact and, as soon as possible, obtain additional information and assign the case to the CPS worker. The CPS worker has, as a standard, 24 hours from the time of assignment to initiate efforts to make face-to-face contact with the alleged victim. Notification of a Priority 2 referral received after normal working hours (8:00 a.m. through 5:00 p.m.) shall occur as early as possible the following morning.
  • For a Priority 3 report, the CPS worker will make the face-to-face contact with the alleged victim within a reasonable period of time.
Classification of Reports

The division shall make a written report of its investigation that shall include a determination regarding whether the alleged abuse or neglect is supported, unsupported, or without merit. Determinations may be:

  • ‘Supported’: a finding by the division based on the evidence available at the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred
  • ‘Unsupported’: a finding at the completion of an investigation that there is insufficient evidence to conclude that abuse, neglect, or dependency occurred
  • ‘Without merit’: a finding at the completion of an investigation by the division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency

The division’s determination of whether a report is supported or unsupported may be based on the child’s statements alone. Decisions regarding whether a report is supported, unsupported, or without merit shall be based on the facts of the case at the time the report was made.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Any person licensed under the Medical Practice Act or the Nurse Practice Act is required to report.

Reporting by Other Persons

Any person who has reason to believe that a child has been subjected to abuse or neglect must report.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

A report is required when:

  • A person has reason to believe that a child has been subjected to abuse or neglect.
  • A person observes a child being subjected to conditions or circumstances that would reasonably result in sexual abuse, physical abuse, or neglect.
Privileged Communications

The requirement to report does not apply to a clergy member or priest without the consent of the person making the confession, with regard to any confession made to the clergy member or priest in his or her professional character in the course of discipline enjoined by the church.

The physician-patient privilege is not a ground for excluding evidence regarding a child’s injuries or the cause of those injuries in any proceeding resulting from a report made in good faith pursuant to this part.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

The name and contact information of the reporter shall be deleted prior to any release of records to the subject of the report.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Chemical substance’ means:

  • A substance intended to be used as a precursor in the manufacture of a controlled substance
  • A substance intended to be used in the manufacture of a controlled substance
  • Any fumes or by-product resulting from the manufacture of a controlled substance

‘Exposed to’ means that the child:

  • Is able to access or view an unlawfully possessed controlled substance or chemical substance
  • Has the reasonable capacity to access drug paraphernalia
  • Is able to smell an odor produced during, or as a result of, the manufacture or production of a controlled substance

Unless a greater penalty is otherwise provided by law:

  • A person is guilty of a felony of the third degree if the person knowingly or intentionally causes or permits a child to be exposed to, inhale, ingest, or have contact with a controlled substance, chemical substance, or drug paraphernalia.
  • A person is guilty of a felony of the second degree if:
    • The person engages in the conduct described above.
    • As a result of that conduct, a child suffers bodily injury, substantial bodily injury, or serious bodily injury.
  • A person is guilty of a felony of the first degree if the person engages in the conduct described above, and as a result of that conduct, a child dies.

It is an affirmative defense to a violation of this section that the controlled substance was obtained by lawful prescription and is used or possessed by the person to whom it was lawfully prescribed.

The penalties described in this section are separate from, and in addition to, the penalties and enhancements described in Title 58, Occupations and Professions.

When an individual, including a licensee under the Medical Practice Act or the Nurse Practice Act, attends the birth of a child or cares for a child and determines that the child, at the time of birth, has fetal alcohol syndrome, fetal alcohol spectrum disorder, or fetal drug dependency, the individual shall report that determination to the Division of Child and Family Services as soon as possible.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The court:

  • May appoint an attorney guardian ad litem (GAL) to represent the best interests of a minor involved in any case before the court
  • Shall consider the best interests of a child, consistent with the provisions of § 62A-4a-201, in determining whether to appoint a GAL

In all cases in which an attorney GAL is appointed, the court shall make a finding that establishes the necessity of the appointment.

An attorney GAL shall represent the best interests of each child who may become the subject of a petition alleging abuse, neglect, or dependency, from the day, whichever is earlier, that:

  • The child is removed from the child’s home by the division.
  • The petition is filed.
The Use of Court-Appointed Special Advocates (CASAs)

An attorney GAL may use trained volunteers, trained paralegals, and other trained staff to assist in investigation and preparation of information regarding the cases of individual minors before the court. The attorney GAL may not delegate the attorney’s responsibilities described below.

All volunteers, paralegals, and staff utilized pursuant to this section shall be trained in and follow, at a minimum, the guidelines established by the Court Appointed Special Advocate Association.

The court may use trained volunteers to assist in investigation and preparation of information regarding the cases of individual minors within the jurisdiction.

When possible and appropriate, the court may use a volunteer who is a peer of the minor appearing before the court, in order to provide assistance to that minor, under the supervision of an attorney GAL or the attorney’s trained volunteer, paralegal, or other trained staff.

Qualifications/Training

The Office of Guardian Ad Litem director shall establish policy and procedure for the management of a statewide GAL program, including, but not limited to:

  • Managing the GAL program to ensure that minors receive qualified GAL services in abuse, neglect, and dependency proceedings in accordance with State and Federal law and policy
  • Developing standards for contracts of employment and contracts with independent contractors to employ or contract with attorneys licensed to practice law in this State to act as attorney GALs
  • Developing and providing training programs for attorney GALs and volunteers in accordance with National Court Appointed Special Advocates Association standards
  • Developing a GAL manual, combining elements of the National Court Appointed Special Advocates Association manual with specific information about the law and policy of this State
  • Developing and providing a library of materials for the continuing education of attorney GALs and volunteers
  • Educating court personnel regarding the role and function of GALs

A contract of employment or independent contract shall provide that attorney GALs in the second, third, and fourth judicial districts devote their full time and attention to the role of attorney GAL, having no clients other than the minors whose interests they represent within the GAL program.

Prior to representing any minor before the court, the attorney GAL shall be trained in:

  • Applicable statutory, regulatory, and case law
  • Accordance with the National Court Appointed Special Advocates Association guidelines
Specific Duties

The attorney GAL shall:

  • Represent the best interests of the minor in all proceedings
  • Conduct an independent investigation to obtain firsthand a clear understanding of the situation and needs of the child
  • Meet with the child, interview the child if he or she is old enough to communicate, determine the child’s goals and concerns regarding placement, and assess the appropriateness and safety of each placement
  • File written motions, responses, or objections at all stages of a proceeding when necessary
  • Attend all administrative and foster care citizen review board hearings pertaining to the child’s case
  • Participate in all appeals unless excused by the court
  • Be familiar with local experts who can provide consultation and testimony regarding the reasonableness and appropriateness of efforts made by the Division of Child and Family Services
  • To the extent possible, unless it would be detrimental to the child, keep the child advised of:
    • The status of his or her case
    • All court and administrative proceedings
    • Discussions with, and proposals made by, other parties
    • Court actions
    • The psychiatric, medical, or other treatment or services that are to be provided to the child
  • Monitor implementation of a minor’s child and family plan and any dispositional orders to determine whether services ordered by the court are actually provided, are provided in a timely manner, and are accomplishing the intended goal of the services

The GAL shall continue to represent the child until released by the court.

If the child’s wishes differ from the GAL’s determination of the child’s best interests, the GAL shall communicate the child’s wishes to the court in addition to presenting the GAL’s determination of the child’s best interests. A difference between the child’s wishes and the GAL’s determination of best interests may not be considered a conflict of interest for the GAL.

How the Representative Is Compensated

The juvenile court is responsible for:

  • All costs resulting from the appointment of an attorney GAL
  • The costs of volunteer, paralegal, and other staff appointment and training

The court shall use funds appropriated by the legislature for the GAL program to cover the costs described above.

When the court appoints an attorney GAL under this section, the court may assess all or part of the attorney fees, court costs, and paralegal, staff, and volunteer expenses against the child’s parents, parent, or legal guardian in a proportion that the court determines to be just and appropriate, taking into consideration costs already borne by the parents, parent, or legal guardian, including:

  • Private attorney fees
  • Counseling for the child
  • Counseling for the parent, if mandated by the court or recommended by the Division of Child and Family Services
  • Any other cost the court determines to be relevant

The court may not assess those fees or costs against a legal guardian when that guardian is the State or a parent who is found to be impecunious. If a person claims to be impecunious, the court shall:

  • Require that person to submit an affidavit of impecuniosity as provided in § 78A-2-302
  • Follow the procedures and make the determinations as provided in § 78A-2-304

The child’s parents, parent, or legal guardian may appeal the court’s determination of fees, costs, and expenses.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

No more than 45 days after a child enters the temporary custody of the division, a child and family plan shall be finalized for the child.

Who May Participate in the Case Planning Process

The Division of Child and Family Services may use an interdisciplinary team approach in developing each child and family plan. The interdisciplinary team shall include representatives from the following fields:

  • Mental health
  • Education
  • Law enforcement, if appropriate

The division may involve all of the following in the development of the child and family plan:

  • Both of the child’s natural parents, unless the whereabouts of a parent are unknown
  • The child
  • The child’s foster parents
  • The child’s stepparent, if appropriate
  • The child’s guardian ad litem, if one has been appointed by the court
Contents of a Case Plan

Each child and family plan shall:

  • Specifically provide for the safety of the child in accordance with Federal law
  • Clearly define what actions or precautions will or may be necessary to provide for the health, safety, protection, and welfare of the child

The plan shall set forth, with specificity, at least the following:

  • The reason the child entered into the custody of the division
  • Documentation of the reasonable efforts made to prevent placement of the child in the custody of the division, or the emergency situation that existed and prevented reasonable efforts from being made
  • The primary permanency goal for the child and the reason for selection of that goal
  • The concurrent permanency goal for the child and the reason for the selection of that goal
  • If the plan is for the child to return to the child’s family:
    • Specifically what the parents must do to enable the child to be returned home
    • Specifically how those requirements may be accomplished
    • How those requirements will be measured
  • The specific services needed to reduce the problems that necessitated placing the child in the division’s custody
  • The name of the person who will provide and be responsible for case management
  • A schedule of parent time between the natural parent and the child, unless such parent-time is detrimental to the child
  • The health and mental health care to be provided to address any known or diagnosed mental health needs of the child
  • If residential treatment rather than a foster home is the proposed placement, a requirement for a specialized assessment of the child’s health needs, including an assessment of mental illness and behavior and conduct disorders
  • Social summaries that include case history information pertinent to case planning

The case plan shall address specific problems that keep a child in placement and keep a child from achieving permanence in his or her life. It shall be designed to minimize disruption to the normal activities of the child’s family, including employment and school.

The division shall consider visitation with their grandparents for children in State custody if the division determines visitation to be in the best interest of the children and:

  • There are no safety concerns regarding the behavior or criminal background of the grandparents.
  • Allowing visitation would not compete with or undermine reunification goals.
  • There is a substantial relationship between the grandparents and children.
  • The visitation will not unduly burden the foster parents.

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

In addition to the primary permanency goal, the court shall establish a concurrent permanency goal that shall include:

  • A representative list of the conditions under which the primary permanency goal will be abandoned in favor of the concurrent permanency goal
  • An explanation of the effect of abandoning or modifying the primary permanency goal

A permanency hearing shall be conducted in accordance with § 78A-6-314(1)(b) within 30 days if something other than reunification is initially established as a minor’s primary permanency goal.

The court may amend a minor’s primary permanency goal before the establishment of a final permanency plan under § 78A-6-314. The court is not limited to the terms of the concurrent permanency goal in the event that the primary permanency goal is abandoned.

If, at any time, the court determines that reunification is no longer a minor’s primary permanency goal, the court shall conduct a permanency hearing in accordance with § 78A-6-314 on or before the earlier of the following:

  • Thirty days from the day on which the court makes the determination [that reunification is no longer the primary permanency goal]
  • The day on which the provision of reunification services ends, as described in § 78A-6-314

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

If reunification efforts have been ordered by the court, a hearing shall be held no more than 6 months after initial removal of a child from his or her home.

A permanency hearing shall be held:

  • No later than 12 months after the original removal of the minor when reunification services have been ordered
  • Within 30 days from the date of the dispositional hearing if reunification services were not ordered at the dispositional hearing
Persons Entitled to Attend Hearings

The following persons are entitled to notice of, and to be present at, each hearing and proceeding held under this part, including administrative and citizen reviews, and have a right to be heard at each hearing and proceeding:

  • The child who is the subject of the hearing
  • Both parents and any guardian of the child
  • Any person entitled to notice under §§ 78A-6-306 or 78A-6-310, including:
    • The caseworker from the Division of Child and Family Services
    • The attorney from the Attorney General’s Office representing the division
  • Preadoptive parents
  • Foster parents
  • Any relative providing care for the child

A child shall be represented at each hearing by the guardian ad litem appointed to the child’s case by the court. The child has a right to be present at each hearing, subject to the discretion of the guardian ad litem or the court regarding any possible detriment to the child.

The parent or guardian of a child who is the subject of a petition under this part has the right to be represented by counsel and to present evidence at each hearing.

Determinations Made at Hearings

At the review hearing, the court shall determine whether:

  • The division has provided and is providing reasonable efforts to reunify a family in accordance with the child and family plan.
  • The parent has fulfilled or is fulfilling identified duties and responsibilities in order to comply with the requirements of the child and family plan.

At the permanency hearing the court shall determine whether the child may safely be returned to the custody of his or her parents. If the court finds, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to his or her physical or emotional well-being, the child may not be returned to the custody of his or her parents.

The court shall review and consider:

  • The report prepared by the division
  • Any admissible evidence offered by the minor’s guardian ad litem
  • Any report submitted by the division under § 78A-6-315(3)(a)(i)
  • Any evidence regarding the efforts or progress demonstrated by the parent
  • The extent to which the parent cooperated and utilized the services provided

If the child is not returned to his or her parent or guardian at the permanency hearing, the court shall:

  • Order termination of reunification services to the parent
  • Make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the child, taking into account the child’s primary permanency goal
  • Establish a concurrent plan that identifies the second most appropriate final plan for the child
Permanency Options

In addition to a primary permanency plan, the court shall establish a concurrent permanency plan that shall include:

  • A representative list of the conditions under which the primary permanency plan will be abandoned in favor of the concurrent permanency plan
  • An explanation of the effect of abandoning or modifying the primary permanency plan

In determining the primary permanency plan and concurrent permanency plan, the court shall consider:

  • The preference for kinship placement over nonkinship placement
  • The potential for a guardianship placement if the parent-child relationship is legally terminated and no appropriate adoption placement is available
  • The use of an individualized permanency plan only as a last resort

Permanency options include:

  • Reunification
  • Adoption
  • Permanent custody and guardianship
  • Kinship placement
  • Another planned permanent living arrangement

 

Determining the Best Interests of the Child

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Current Through March 2016

It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home and for positive, nurturing family relationships is usually best met by the child’s natural parents. Additionally, the integrity of the family unit and the right of parents to conceive and raise their children are constitutionally protected. The right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest that has long been protected by the laws and Constitution and is a fundamental public policy of this State.

It is also the public policy of this State that children have the right to protection from abuse and neglect, and that the State retains a compelling interest in investigating, prosecuting, and punishing abuse and neglect. Therefore, the State, as parens patriae, has an interest in and responsibility to protect children whose parents abuse them or do not adequately provide for their welfare. There may be circumstances where a parent’s conduct or condition is a substantial departure from the norm and the parent is unable or unwilling to render safe and proper parental care and protection. Under those circumstances, the State may take action for the welfare and protection of the parent’s children.

When the Division of Child and Family Services intervenes on behalf of an abused, neglected, or dependent child, it shall take into account the child’s need for protection from immediate harm and the extent to which the child’s extended family may provide needed protection. Throughout its involvement, the division shall utilize the least intrusive and least restrictive means available to protect a child, in an effort to ensure that children are brought up in stable, permanent families, rather than in temporary foster placements under the supervision of the State.

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Subject to the protections and requirements of § 78A-6-503, and if the court finds strictly necessary, the court may terminate parental rights if it finds any one of the following:

  • The parent has abandoned the child.
  • The parent has neglected or abused the child.
  • The parent is unfit or incompetent.
  • The child is being cared for in an out-of-home placement, the parent has substantially neglected or has been unable or unwilling to remedy the circumstances that caused the child to be in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future.
  • The parent has made only token efforts to support or communicate with the child, prevent neglect of the child, eliminate the risk of serious harm to the child, or avoid being an unfit parent.
  • After a trial period during which the child was returned home, the parent substantially and continuously refused or failed to give the child proper parental care and protection.
  • The parent has complied with the terms and conditions of a safe relinquishment of a newborn child.

In determining whether a parent has abandoned a child, it is prima facie evidence of abandonment when the parent has:

  • Surrendered physical custody of the child, and for 6 months following the surrender has not manifested a firm intention to resume physical custody or to make arrangements for the care of the child
  • Failed to communicate with the child for 6 months
  • Failed to show the normal interest of a natural parent, without just cause
  • Abandoned an infant

In determining whether a parent is unfit or has neglected a child, the court shall consider, but is not limited to, the following circumstances, conduct, or conditions:

  • Emotional illness, mental illness, or mental deficiency of the parent that renders the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time
  • Conduct toward a child of a physically, emotionally, or sexually cruel or abusive nature
  • Habitual or excessive use of intoxicating liquors, controlled substances, or dangerous drugs that render the parent unable to care for the child
  • Repeated or continuous failure to provide the child with adequate food, clothing, shelter, education, or other necessary care
  • Incarceration of the parent for such a time that the child will be deprived of a normal home for more than 1 year
  • A history of violent behavior

The following circumstances constitute prima facie evidence of unfitness:

  • Sexual abuse, sexual exploitation, injury, or death of any child, due to known or substantiated abuse or neglect by the parent
  • Conviction of a crime of such a nature as to indicate the unfitness of the parent to provide adequate care for the child
  • A single incident of life-threatening or gravely disabling injury to or disfigurement of the child
  • Conviction of the parent of committing, aiding, abetting, attempting, conspiring, or soliciting to commit murder or manslaughter of a child or child abuse homicide
  • Intentionally, knowingly, or recklessly causing the death of another parent of the child, without legal justification
Circumstances That Are Exceptions to Termination of Parental Rights

The court may not terminate the parental rights of a parent because the parent has failed to complete a treatment required by a child and family plan. If the court has directed the division to provide reunification services to a parent, the court must find that the division made reasonable efforts to provide those services before the court may terminate the parent’s rights.

A parent who, legitimately practicing the parent’s religious beliefs, does not provide specified medical treatment for a child is not, for that reason alone, a negligent or unfit parent.

A parent may not be considered neglectful or unfit because of a health-care decision made for a child by the child’s parent unless the State or other party to the proceeding shows, by clear and convincing evidence, that the health-care decision is not reasonable and informed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, or by written instrument, but excludes one who is merely a guardian ad litem.

Purpose of Guardianship

Guardianship services and placements provide a permanent, safe living arrangement for a child in the court-ordered custody of the Division of Child and Family Services or the Department of Human Services when it is not appropriate for the child to return home or be adopted, and continuing agency custody is not in the child’s best interests.

General qualifying factors that must be met for both relative and nonrelative guardianship include:

  • The child cannot safely return home. This requirement is met if the court determines that reunification with the child’s parents is not possible or appropriate and the Child and Family Team and regional screening committee agree that adoption is not an appropriate plan for the child.
  • The parent and child have a significant bond, but the parent is unable to provide ongoing care for the child, such as an emotional, mental, or physical disability, and the child’s current caregiver has committed to raising the child to the age of majority and to facilitate visitation with the parent.
  • The prospective guardian must:
    • Be able to maintain a stable relationship with the child
    • Have a strong commitment to providing a safe and stable home for the child on a long-term basis
    • Have a means of financial support and connections to community resources
    • Be able to care for the child without division supervision
  • The child has no ongoing care or financial needs beyond basic maintenance and does not require the services of a case manager.
  • There are compelling reasons why the child cannot be adopted, such as when the child’s Tribe has exclusive jurisdiction or the Tribe has chosen to intervene in the adoption proceedings.

Under the Indian Child Welfare Act (25 USC § 1911), a Tribe has the right to determine the child’s permanency. For this reason, the Tribe has the authority to approve guardianship with the current caregiver.

A Guardian’s Rights and Responsibilities

Guardianship of the person includes the authority to consent to:

  • Marriage
  • Enlistment in the armed forces
  • Major medical, surgical, or psychiatric treatment
  • Legal custody, if legal custody is not vested in another person, agency, or institution

‘Legal custody’ means a relationship embodying the following rights and duties:

  • The right to physical custody of the minor
  • The right and duty to protect, train, and discipline the minor
  • The duty to provide the minor with food, clothing, shelter, education, and ordinary medical care
  • The right to determine where and with whom the minor shall live
  • The right, in an emergency, to authorize surgery or other extraordinary care

The term ‘residual parental rights and duties’ means those rights and duties remaining with the parent after legal custody or guardianship, or both, have been vested in another person or agency, including:

  • The responsibility for support
  • The right to consent to adoption
  • The right to determine the child’s religious affiliation
  • The right to reasonable parent-time unless restricted by the court

If no guardian has been appointed, ‘residual parental rights and duties’ also include the right to consent to marriage; enlistment; and major medical, surgical, or psychiatric treatment.

Qualifying the Guardian

For a nonrelative guardianship, the following factors must be met:

  • The child has been in the legal custody of the division for at least 12 consecutive months. For a sibling group, at least one child must have been in custody for 12 months.
  • The prospective guardian is a licensed out-of-home care provider.
  • The child has lived for at least 6 months in the home of the prospective guardian. This requirement may be waived for sibling groups if at least one sibling has been in the home for 6 months.
  • The division has assessed the placement and found that continuation with the caregiver is in the child’s best interests and supports the child’s safety, permanency, and well-being.
  • The division has no concerns with the care the child has received in the home.
  • The child has a stable and positive relationship with the caregiver.
  • The child has reached age 12. The age requirement may be waived for a sibling group placed with a nonrelative if at least one sibling is age 12 or older and meets all other guardianship criteria and adoption is not the best permanency option for the younger children.

For a relative guardianship, the following factors must be met:

  • The child’s prospective guardian is a relative to the child, including:
    • Grandfather, grandmother, brother, sister, uncle, aunt, first cousin, first cousin once removed, nephew or niece
    • Persons of preceding generations as designated by prefixes of grand, great, great-great, or great-great-great
    • Spouses of any relative listed above even if the marriage has been terminated
    • Persons that meet any of the above-listed relationships by means of a step relationship
    • Relatives that meet one of these relationships by legal adoption
  • If not licensed as an out-of-home care provider, the relative has completed kinship screening, including a home study and background checks.
  • The child’s needs may be met without continued division funding.
Procedures for Establishing Guardianship

At the dispositional hearing, the court may place the minor in the custody or guardianship of any individual or public or private entity or agency.

A person becomes a guardian of a minor upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. In determining the minor’s best interests, the court may consider the minor’s physical, mental, moral, and emotional health needs. The court shall appoint a person nominated by the minor, if the minor is age 14 or older, unless the court finds the appointment contrary to the best interests of the minor.

By accepting a court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be initiated by any person interested in the welfare of the minor.

Contents of a Guardianship Order

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

Modification/Revocation of Guardianship

A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the minor’s death, adoption, marriage, or attainment of majority, but termination does not affect the guardian’s liability for prior acts nor his or her obligation to account for funds and assets of the ward. Resignation of a guardian does not terminate the guardianship until it has been approved by the court.

Any person interested in the welfare of a ward, or the ward, if age 14 or older, may petition for removal of a guardian on the ground that removal would be in the best interests of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for the appointment of a successor guardian.

After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.

Eligibility for Guardianship Subsidy

In order to be considered for a guardianship subsidy, the prospective relative guardian must be a licensed out-of-home care provider and demonstrate that they cannot qualify for a Specified Relative Grant through the Department of Workforce Services, as outlined in R512-308-6.

Guardianship subsidies are available to meet the care and maintenance needs for children in out-of-home care:

  • For whom guardianship has been determined as the most appropriate primary goal
  • Who do not otherwise have adequate resources available for their care and maintenance
  • Who meet the qualifying factors described in R512-308-4 (Nonrelative Qualifying Factors) and who cannot qualify to receive a Specified Relative Grant from the Department of Workforce Services

Guardianship subsidies are available through the month in which the child reaches age 18. Each region may establish a limit to the number of eligible children who may receive guardianship subsidies. Guardianship subsidies are subject to the availability of State funds designated for this purpose.

Links to Agency Policies

Division of Child and Family Services, Kinship Practice Guidelines (PDF – 412 KB)

Utah Administrative Code, Rule R512-500. Kinship Services, Placement and Background Screening

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

When the court orders that a child be removed from the custody of the child’s parent, the court shall first determine whether there is another natural parent with whom the child is not residing who desires to assume custody of the child. If that parent requests custody, the court shall place the child with that parent unless it finds that the placement would be unsafe or otherwise detrimental to the child.

For purposes of this section, ‘natural parent’ includes only a birth or adoptive mother, an adoptive father, or a birth father who was married to the child’s birth mother at the time the child was conceived or born, or who has strictly complied with the provisions of §§ 78B-6-120 through 78B-6-122 prior to removal of the child or voluntary surrender of the child by the custodial parent.

If a child is removed from the custody of the child’s parent and is not placed in the custody of his or her other parent, the court shall determine whether there is a relative of the child or a friend of a parent of the child who is able and willing to care for the child. This section may not be construed as a guarantee that an identified relative or friend will receive custody of the child. However, preferential consideration shall be given to a relative’s or a friend’s request for placement of the child if it is in the best interests of the child and the provisions of this section are satisfied.

The term ‘relative’ means an adult who is a grandparent, great-grandparent, aunt, great-aunt, uncle, great-uncle, brother-in-law, sister-in-law, stepparent, first cousin, stepsibling, sibling of the child, or a first cousin of the child’s parent. In the case of a child identified as an Indian under the Indian Child Welfare Act (25 U.S.C. § 1903), ‘relative’ also means an extended family member as defined by that statute.

Requirements for Placement with Relatives

The court shall make a specific finding regarding the fitness of the noncustodial parent to assume custody and the safety and appropriateness of the placement. The court shall, at a minimum, order the division to visit the parent’s home, perform criminal background checks, and check for any previous reports of abuse or neglect received by the division regarding the parent at issue.

If a willing relative or friend is identified, the court shall make a specific finding regarding the fitness of that relative or friend to assume custody and the safety and appropriateness of placement with that relative or friend. In order to be considered a ‘willing relative or friend,’ the relative or friend shall be willing to cooperate with the child’s permanency goal.

The court shall, at a minimum, order the division to conduct criminal background checks, visit the relative’s or friend’s home, and check for any previous reports of abuse or neglect regarding the relative or friend at issue. The division must report its findings to the court so that the court may determine whether:

  • The relative or friend has any history of abusive or neglectful behavior toward other children that may indicate or present a danger to this child.
  • The child is comfortable with the relative or friend.
  • The relative or friend recognizes the parent’s history of abuse and is committed to protect the child.
  • The relative or friend is strong enough to resist inappropriate requests by the parent for access to the child, in accordance with court orders.
  • The relative or friend is committed to caring for the child as long as necessary.
  • The relative or friend can provide a secure and stable environment for the child.
Requirements for Placement of Siblings

The child and family plan shall include a visiting plan for the child, parents, and siblings, unless prohibited by court order.

Placement decisions are based upon the child’s needs, strengths, and best interests. The following factors are considered in determining placement:

  • The age, special needs, and circumstances of the child
  • The least restrictive placement consistent with the child’s needs
  • Placement of siblings together
  • Proximity to the child’s home and school
  • Sensitivity to cultural heritage and needs of a minority child
  • The potential for adoption

The child has a right to purposeful and frequent visits with a parent or guardian and siblings, unless the court orders otherwise. The right to visits is not a privilege to be earned or denied based on behavior of the child or the parent or guardian. Visits may be supplemented with telephone calls and written correspondence.

Relatives Who May Adopt

The following relatives may adopt the child:

  • A stepparent
  • A sibling or half-sibling by birth or adoption
  • A grandparent, aunt, uncle, or first cousin
Requirements for Adoption by Relatives

A person adopting a child must be at least 10 years older than the child.

The requirement for a preplacement or postplacement adoptive evaluation does not apply if a preexisting parent has legal custody of the child to be adopted and the prospective adoptive parent is related to that child or the preexisting parent as a stepparent, sibling by half-blood or whole-blood or by adoption, grandparent, aunt, uncle, or first cousin, unless the evaluation is otherwise requested by the court. The prospective adoptive parent shall obtain the following information:

  • Criminal history record information regarding each prospective adoptive parent and any other adult living in the home
  • A report containing all information regarding reports and investigations of child abuse, neglect, and dependency, with respect to each prospective adoptive parent and any other adult living in the home

 

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

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

Current Through March 2016

What Are Reasonable Efforts

The Division of Child and Family Services shall make reasonable efforts to provide services to the child and the child’s parent for the purpose of facilitating reunification of the family for a specified period of time. In determining reasonable efforts to be made with respect to a minor, and in making reasonable efforts, the minor’s health, safety, and welfare shall be the paramount concern.

When Reasonable Efforts Are Required

Because the removal of a child from his or her home affects protected, constitutional rights of the parent and has a dramatic, long-term impact on a child, the division shall:

  • When possible and appropriate, and without danger to the child’s welfare, make reasonable efforts to prevent or eliminate the need for removal of a child from the child’s home prior to placement in substitute care
  • Determine whether there is substantial cause to believe that a child has been abused or neglected or is in danger of abuse or neglect prior to removing the child from his or her home
  • When it is possible and appropriate, make reasonable efforts to make it possible for a child in substitute care to return to his or her home
  • Take measures in a timely manner to place the child in accordance with the permanency plan and complete whatever steps are necessary to finalize the permanent placement of the child if continuation of reasonable efforts to reunify a minor is determined to be inconsistent with the final permanency plan for the child
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if the court finds by clear and convincing evidence that any of the following circumstances exist:

  • The parent’s whereabouts is unknown.
  • The parent suffers from a severe mental illness that renders the parent incapable of using reunification services.
  • The child previously was adjudicated as an abused child, was removed from the home, was returned home, and is being removed due to additional abuse.
  • The parent:
    • Caused the death of another minor through abuse or neglect
    • Committed, attempted, or conspired to commit murder or manslaughter of a child
    • Committed sexual abuse against the child
    • Is a registered sex offender or required to register as a sex offender
    • Has caused, is identified as a suspect, or is being prosecuted for intentionally, knowingly, or recklessly causing the death of another parent of the child
  • The child suffered severe abuse by the parent or by a person known by the parent, and the parent knew or reasonably should have known about the abused.
  • The parent has severely abused the child.
  • The parent’s rights were terminated with regard to any other child.
  • The child was removed from his or her home on at least two previous occasions, and reunification services were offered or provided to the family at those times.
  • The parent abandoned the child for 6 months or longer.
  • The parent permitted the child to reside, permanently or temporarily, where the parent knew or should have known that a clandestine laboratory operation was located.
  • With respect to the child’s birth mother, the child has fetal alcohol syndrome, fetal alcohol spectrum disorder, or was exposed prenatally to an illegal or prescription drug, unless the mother completes an approved substance abuse treatment program.
  • Other circumstances preclude reunification efforts or services.

 

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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