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

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

vermont

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

In criminal law: When imposing sentence for an offense [of domestic assault] listed in this subchapter, the court may consider whether the offense was committed within the presence of a child.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused or neglected child’ means a child whose physical health, psychological growth and development, or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child’s welfare. An ‘abused or neglected child’ also means a child who has died as a result of abuse or neglect.

‘Harm’ can occur by physical injury.

‘Physical injury’ means death, permanent or temporary disfigurement, or impairment of any bodily organ or function by other than accidental means.

‘Serious physical injury’ means, by other than accidental means:

  • Physical injury that creates any of the following:
    • A substantial risk of death
    • A substantial loss or impairment of the function of any bodily member or organ
    • A substantial impairment of health
    • Substantial disfigurement
  • Strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person

‘Risk of harm’ means a significant danger that a child will suffer serious harm by other than accidental means, which harm would be likely to cause physical injury as the result of a single, egregious act that has caused the child to be at significant risk of serious physical injury.

Neglect

‘Harm’ can occur by failure to supply the child with adequate food, clothing, shelter, or health care. As used in this subchapter, ‘adequate health care’ includes any medical or nonmedical remedial health care permitted or authorized under State law.

‘Risk of harm’ means a significant danger that a child will suffer serious harm by other than accidental means, which harm would be likely to cause physical injury, including as the result of:

  • The production or preproduction of methamphetamines when a child is actually present
  • Failing to provide supervision or care appropriate for the child’s age or development and, as a result, the child is at significant risk of serious physical injury
  • Failing to provide supervision or care appropriate for the child’s age or development due to use of illegal substances or misuse of prescription drugs or alcohol
  • Failing to supervise appropriately a child in a situation in which drugs, alcohol, or drug paraphernalia are accessible to the child
Sexual Abuse/Exploitation

‘Sexual abuse’ consists of any act or acts by any person involving sexual molestation or exploitation of a child, including:

  • Incest
  • Prostitution
  • Rape
  • Sodomy
  • Lewd and lascivious conduct involving a child
  • Aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation that, in whole or in part, depicts sexual conduct, sexual excitement, or sadomasochistic abuse involving a child
  • Viewing, possessing, or transmitting child pornography
  • Human trafficking
  • Sexual assault
  • Voyeurism
  • Luring a child
  • Obscenity

‘Risk of harm’ means a significant danger that a child will suffer serious harm by other than accidental means, which harm would be likely to cause sexual abuse, including as the result of a registered sex offender or person substantiated for sexually abusing a child residing with or spending unsupervised time with a child.

Emotional Abuse

‘Harm’ can be caused by emotional maltreatment.

‘Emotional maltreatment’ means a pattern of malicious behavior that results in a child’s impaired psychological growth and development.

Abandonment

Citation: Ann. Stat. Tit. 33, § 4912
‘Harm’ can be caused by the abandonment of the child.

Standards for Reporting

Citation: Ann. Stat. Tit. 33, § 4913
A report is required when a mandatory reporter reasonably suspects abuse or neglect of a child.

Persons Responsible for the Child

‘A person responsible for a child’s welfare’ includes:

  • The child’s parent, guardian, or foster parent
  • Any other adult residing in the home who serves in a parental role
  • An employee of a public or private residential home, institution, or agency
  • Any other person responsible for the child’s welfare while in a residential, educational, or child care setting, including any staff person
Exceptions

A parent or other person responsible for a child’s care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone.

The exchange of images that otherwise may be considered child pornography, when it occurs between mutually consenting minors, including the minor whose image is exchanged, is not considered to be sexual abuse.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

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

  • Attempting to cause or causing physical harm
  • Placing another in fear of imminent serious physical harm
  • Abuse to children, as defined in subchapter 2 of chapter 49 of title 33
  • Stalking, as defined in title 12, § 5131(6)
  • Sexual assault, as defined in title 12, § 5131(5)
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Any person who attempts to cause, willfully or recklessly causes bodily injury to a family or household member, or willfully causes a family or household member to fear imminent serious bodily injury is guilty of ‘domestic assault.’

A person commits the crime of ‘first-degree aggravated domestic assault’ if the person:

  • Attempts to cause or willfully or recklessly causes serious bodily injury to a family or household member
  • Uses, attempts to use, or is armed with a deadly weapon and threatens to use the deadly weapon on a family or household member
  • Commits the crime of domestic assault and has been previously convicted of aggravated domestic assault

A person commits the crime of ‘second-degree aggravated domestic assault’ if the person:

  • Commits the crime of domestic assault and such conduct violates:
    • Specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person
    • A final abuse prevention order issued under title 15, § 1103 or a similar order issued in another jurisdiction
    • A final order against stalking or sexual assault issued under title 12, § 5133 or a similar order issued in another jurisdiction
    • A final order against abuse of a vulnerable adult issued under title 33, § 6935 or a similar order issued in another jurisdiction
  • Commits the crime of domestic assault and:
    • Has a prior conviction within the last 10 years for violating an abuse protection order issued
    • Has a prior conviction for domestic assault

For the purpose of this subsection, the term ‘issued in another jurisdiction’ means issued by a court in any other State, federally recognized Indian Tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia.

Persons Included in the Definition

In civil law: ‘Household members’ means persons who, for any period of time:

  • Are living or have lived together
  • Are sharing or have shared occupancy of a dwelling
  • Are engaged in or have engaged in a sexual relationship
  • Are minors or adults who are dating or who have dated

‘Dating’ means a social relationship of a romantic nature. Factors that the court may consider when determining whether a dating relationship exists or existed include:

  • The nature of the relationship
  • The length of time the relationship has existed
  • The frequency of interaction between the parties
  • The length of time since the relationship was terminated, if applicable

‘Family’ shall include a reciprocal beneficiary.

In criminal law: As used in this subchapter, ‘family or household members’ means persons who are eligible for relief from abuse, as defined above.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

The commissioner shall adopt rules to permit use of the registry records while preserving confidentiality of the registry and other departmental records.

Persons or Entities Allowed Access to Records

The commissioner may disclose a registry record only as follows:

  • To the State’s attorney or the attorney general
  • Upon request or when relevant to other States’ adult protective services offices or child protection agencies
  • To the person substantiated for child abuse and neglect who is the subject of the record
  • To the commissioner of the Department of Corrections in accordance with the provisions of title 28, § 204a(b)(3)

Disclosure of registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.

The commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter. The department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child’s family, or for other legal purposes.

Upon request, the redacted investigation file shall be disclosed to:

  • The child’s parents, foster parent, or guardian, provided that the child’s parent, foster parent, or guardian is not the subject of the investigation
  • The person alleged to have abused or neglected the child

Upon request, department records shall be disclosed to:

  • The court, parties to the juvenile proceeding, and the child’s guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the commissioner
  • The commissioner or person designated by the commissioner to receive such records
  • Persons assigned by the commissioner to conduct investigations
  • Law enforcement officers engaged in a joint investigation with the department, an assistant attorney general, or a State’s attorney
  • Other State agencies conducting related inquiries or proceedings
  • The probate division of the superior court involved in guardianship proceedings

Upon request, relevant department records created under this subchapter may be disclosed to:

  • Service providers working with a person or child who is the subject of the report
  • Other governmental entities for purposes of child protection
When Public Disclosure of Records is Allowed

This issue is not addressed in the statutes reviewed.

Use of Records for Employment Screening

The commissioner may disclose a registry record only as follows:

  • To the owner or operator of a facility regulated by the department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license, registration, or certification
  • To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults
  • To the commissioners of disabilities, aging, independent living, and mental health for purposes related to the licensing or registration of facilities regulated by those departments
  • To the commissioners of health, disabilities, aging, independent living, and mental health for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by those departments, including persons to whom a conditional offer of employment has been made
  • To the board of medical practice for the purpose of evaluating an applicant, licensee, or holder of certification pursuant to title 26, § 1353

An employer providing transportation services to children or vulnerable adults may disclose registry records to the Agency of Human Services for the sole purpose of auditing the records to ensure compliance with this subchapter. An employer shall provide such records at the request of the agency or its designee. Only registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed. Volunteers shall be considered employees for purposes of this section.

In no event shall registry records be made available for employment purposes other than as set forth in this subsection or for credit purposes.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, other than a person suspected of child abuse, who in good faith makes a report to the department, shall be immune from any civil or criminal liability that might otherwise be incurred or imposed as a result of making a report.

 

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter who has reasonable cause to believe that a child has been abused or neglected shall report within 24 hours.

Content of Reports

The report shall contain:

  • The name and address of the reporter
  • The names and addresses of the child and the child’s parents or other persons responsible for the child, if known
  • The age of the child
  • The nature and extent of the child’s injuries, including any evidence of previous abuse and neglect of the child or the child’s siblings
  • Any other information that the reporter believes might be helpful in establishing the cause of the injuries or the reasons for the neglect
Reporting Suspicious Deaths

This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

A report shall be made orally or in writing to the Department of Social and Rehabilitation Services.

Initial Screening Decisions

Upon receipt of a report of abuse or neglect, the department shall promptly determine whether the report constitutes an allegation of child abuse or neglect. If the report is accepted as a valid allegation of abuse or neglect, the department shall determine whether to conduct an assessment or an investigation.

The decision to conduct an assessment shall include consideration of the following factors:

  • The nature of the conduct and the extent of the child’s injury, if any
  • The accused person’s prior history of child abuse or neglect, or lack thereof
  • The accused person’s willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation

The department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment. For purposes of this section, ‘substantial child endangerment’ includes conduct by an adult involving or resulting in sexual abuse and conduct by a person responsible for a child’s welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury. The department may conduct an investigation of any report.

Agency Conducting the Assessment/Investigation

The department shall conduct either an assessment or an investigation. The department shall report to and request assistance from law enforcement in the following circumstances:

  • Investigations of child sexual abuse by an alleged perpetrator age 10 or older
  • Investigations of serious physical abuse or neglect likely to result in criminal charges or requiring emergency medical care
  • Situations that are potentially dangerous to the child or department worker
Assessment/Investigation Procedures

An assessment shall include:

  • An interview with the child’s parent or any other adult residing in the child’s home who serves in a parental role
  • An evaluation of the safety of the child and other children living in the home, which may include an interview with or observation of the children
  • In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves family well-being

Families have the option of declining the services offered. If the family declines the services, the case shall be closed unless the department determines that sufficient cause exists to begin an investigation. In no instance shall a case be investigated solely because the family declines services.

When an assessment case is closed, there shall be no finding of abuse or neglect, however, the department shall document the outcome of the assessment.

An investigation shall include:

  • A visit to the child’s residence and the location of the alleged abuse or neglect
  • An interview with or observation of the abused or neglected child
  • A determination of the nature, extent, and cause of any abuse or neglect
  • A determination of the identity of the person alleged to be responsible for the abuse or neglect
  • The identity of any other children living in the same home
  • A determination of the immediate and long-term risk to each child if that child remains in the home
  • Consideration of the environment and the relationship of any children to the person alleged to be responsible for the suspected abuse or neglect

For cases substantiated by the department, the commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child’s family. Services may be provided to the child’s immediate family whether or not the child remains in the home.

Timeframes for Completing Investigations

The department shall begin either an assessment or an investigation within 72 hours after the receipt of a report, provided that it has sufficient information to proceed.

The assessment shall be completed within 45 days. Upon written justification by the department, the assessment may be extended, not to exceed a total of 60 days.

Classification of Reports

The term ‘substantiated report’ means that the commissioner has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.

In regulation: The decision to substantiate a report of child maltreatment shall be based on pertinent, accurate, and reliable information gathered during an investigation. Hearsay information from a reliable source may be considered. All information shall be weighed with other supporting or conflicting data. A statement or disclosure from the child that he or she was abused or neglected is not required.

In order to substantiate an allegation of child abuse or neglect, the division must determine that a reasonable person would conclude that:

  • The child is an abused or neglected child as defined in statute.
  • Unless the substantiated maltreatment is sexual abuse, a person responsible for the child’s welfare is the perpetrator.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

Mandatory reporters include:

  • Health-care providers, including physicians, surgeons, osteopaths, chiropractors, physician assistants, resident physicians, interns, hospital administrators, nurses, medical examiners, emergency medical personnel, dentists, psychologists, and pharmacists
  • Individual who are employed or contracted and paid by a school district or an approved or recognized independent school, including school superintendents, headmasters, teachers, student teachers, school librarians, school principals, and school guidance counselors
  • Child care workers
  • Mental health professionals and social workers
  • Police officers and probation officers
  • Employees, contractors, and grantees of the Agency of Human Services who have contact with clients
  • Camp owners, camp administrators, and camp counselors
  • Members of the clergy
Reporting by Other Persons

Any other concerned person who has reasonable cause to believe that a child has been abused or neglected may report.

Institutional Responsibility to Report

An employer or supervisor shall not discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee because that employee filed a good-faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

Standards for Making a Report

A report is required when a mandated reporter reasonably suspects abuse or neglect of a child.

Privileged Communications

A person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication, except that a member of the clergy is not required to report if the knowledge comes from a communication that is required to be kept confidential by religious doctrine.

Inclusion of Reporter’s Name in Report

Reports shall contain the name and address or other contact information of the reporter.

Disclosure of Reporter Identity

The name of and any identifying information about either the person making the report or any person mentioned in the report shall be confidential unless:

  • The person making the report specifically allows disclosure.
  • A Human Services Board proceeding or judicial proceeding results from the report.
  • A court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the department to make the name of the reporter available.
  • A review has been requested pursuant to § 4916a of this title, and the department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

This issue is not addressed in the statutes reviewed.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

An attorney shall be appointed for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters. In addition, a guardian ad litem (GAL) shall be appointed for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a GAL for the child, providing his or her interests do not conflict with the interests of the child. The GAL appointed under this section shall not be a party to that proceeding or an employee or representative of such party.

Specific Duties

The GAL shall act as an independent advisor and advocate whose goal shall be to safeguard the respondent’s best interests and legal rights. When the respondent can effectively communicate his or her wishes with respect to any aspect of the proceedings, the GAL’s advocacy shall be consistent with the expressed wishes of the respondent, and the GAL shall state no fact nor disclose any opinion in regard to that aspect of the proceeding except with the express consent of the respondent.

Each GAL shall meet with the respondent, the respondent’s attorney, and others who may be necessary for an understanding of the issues in the proceeding. The GAL shall not contact the court ex parte, nor disclose confidential or privileged information to opposing parties without the express consent of the respondent after consultation with counsel. The GAL shall be familiar with all pertinent pleadings, reports, and other documents. The GAL shall discuss with the respondent and the respondent’s attorney all options that may be presented to the court and shall assist the attorney in advising the respondent regarding those options.

How the Representative Is Compensated

This issue is not addressed in the statutes reviewed.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

When a social worker has been assigned to provide ongoing services to an intact family, he or she will complete an initial case plan with the family within 60 days of the date the family risk assessment was completed.

When the child’s custody has been transferred to the Department of Children and Families, the initial case plan must be completed within 6 weeks of custody.

Who May Participate in the Case Planning Process

The department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child’s family, relatives, and other persons with a significant relationship to the child. Whenever possible, parents, guardians, and custodians shall participate in the development of the case plan.

Contents of a Case Plan

The case plan is a written document developed by a family services social worker that identifies the family needs; sets forth goals to preserve, rehabilitate, or reunify the family; and documents goal progress.

In policy: The department offers a variety of services, both directly and by contract, designed to keep families together and meet important goals, including:

  • Protecting the health, safety, and well-being of the child
  • Reinforcing or establishing a set of stable, nurturing relationships between the child and his or her primary family
  • Preserving the primary family

When the child must be placed out of his or her home, a placement setting should be selected that is appropriate to the child’s needs. Whenever it meets the child’s or youth’s needs, and to the extent possible, the setting should be:

  • Familylike
  • In close proximity to the child’s family
  • Within the child’s school district
  • With siblings
  • Consistent with the child’s cultural background

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

The long-term goal for a child found to be in need of care and supervision is a safe and permanent home. A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal. The plan shall specify whether permanency will be achieved through reunification with a custodial parent, guardian, or custodian; adoption; permanent guardianship; or other permanent placement. In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

If the permanency goal of the disposition case plan is reunification with a parent, guardian, or custodian, the court shall hold a review hearing within 60 days of the date of the disposition order.

A permanency review hearing shall be held no less than every 12 months with the first hearing to be held 12 months after the date the legal custody of the child was transferred, subject to the following exceptions:

  • If the child was age 3 or younger at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every 3 months.
  • If the child is between age 3 and 6 at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every 6 months.

If the court shortens the time for the permanency review hearing for a younger sibling, that shortened review interval shall be applied to all siblings in the family who are in the legal custody of the Department for Children and Families.

Upon the filing of a petition for a finding of reasonable efforts, the court shall hold a hearing within 30 days to determine, by a preponderance of the evidence, whether the department has made reasonable efforts to finalize the permanency plan for the child that is in effect at the time of the hearing. The hearing may be consolidated with or separate from a permanency hearing. Reasonable efforts to finalize a permanency plan may consist of:

  • Reasonable efforts to reunify the child and family when the permanency plan for the child is reunification
  • Reasonable efforts to arrange and finalize an alternate permanent living arrangement for the child when the permanency plan for the child does not include reunification
Persons Entitled to Attend Hearings

The department shall provide notice of the permanency review to:

  • The State’s attorney having jurisdiction
  • All parties to the proceeding in accordance with the rules for family proceedings

A foster parent, preadoptive parent, or relative caregiver for the child shall be provided notice of and an opportunity to be heard at any permanency hearing held with respect to the child. This notice shall not be construed as giving such person party status in the proceeding.

Determinations Made at Hearings

At the postdisposition review hearing, the court shall monitor progress under the disposition case plan and review parent-child contact.

At the permanency review, the court shall review the permanency plan and determine whether the plan advances the permanency goal recommended by the department. The court may accept or reject the plan but may not designate a particular placement for a child in the department’s legal custody.

The permanency hearing may be held by an administrative body appointed or approved by the court. In the event that the administrative body determines that the existing order should be altered, it shall submit its recommendation to the court for its consideration. In the event that the administrative body determines that the existing order should not be altered, its determination shall be binding unless any party requests review by the court within 10 days of receipt of the determination.

Permanency Options

At the permanency hearing, the court shall determine the permanency goal for the child and an estimated time for achieving that goal. The goal shall specify when:

  • Legal custody of the child will be transferred to the parent, guardian, or custodian.
  • The child will be released for adoption.
  • A permanent guardianship will be established for the child.
  • A legal guardianship will be established for the child pursuant to an order under chapter 111 of Title 14.
  • The child will remain in the same living arrangement or be placed in another planned permanent living arrangement because the commissioner has demonstrated to the satisfaction of the court a compelling reason that it is not in the child’s best interests to:
    • Return home
    • Have residual parental rights terminated and be released for adoption
    • Be placed with a fit and willing relative or legal guardian

 

Determining the Best Interests of the Child

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Current Through March 2016

At the time of the hearing under this section, the court shall consider the best interests of the child in accordance with the following criteria:

  • The likelihood that the respondent will be able to assume or resume his or her parental duties within a reasonable period of time
  • The child’s adjustment to his or her home, school, and community
  • The interaction and interrelationship of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interests
  • Whether the parent or alleged parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child’s welfare

At the time of a permanency review, a modification hearing, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall consider the best interests of the child in accordance with the following:

  • The interaction and interrelationship of the child with his or her parents; siblings; foster parents, if any; and any other person who may significantly affect the child’s best interests
  • The child’s adjustment to his or her home, school, and community
  • The likelihood that the parent will be able to resume or assume parental duties within a reasonable period of time
  • Whether the parent has played and continues to play a constructive role, including personal contact and demonstrated emotional support and affection, in the child’s welfare

Except in cases where a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall also consider whether the parent is capable of playing a constructive role, including demonstrating emotional support and affection, in the child’s welfare.

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

If any one of the following grounds exists, the court shall order the termination of parental rights:

  • In the case of a child under the age of 6 months, the parent did not exercise parental responsibility once he or she knew or should have known of the child’s birth or expected birth. In making a determination under this subdivision, the court shall consider all relevant factors, which may include the respondent’s failure to:
    • Pay reasonable prenatal, natal, and postnatal expenses in accordance with his or her financial means
    • Make reasonable and consistent payments, in accordance with his or her financial means, for the support of the child
    • Regularly communicate or visit with the minor
    • Manifest an ability and willingness to assume legal and physical custody of the minor
  • In the case of a child over the age of 6 months at the time the petition is filed, the respondent did not exercise parental responsibility for a period of at least 6 months immediately preceding the filing of the petition. In making a determination under this subdivision, the court shall consider all relevant factors, which may include the respondent’s failure to:
    • Make reasonable and consistent payments, in accordance with his or her financial means, for the support of the child, although legally obligated to do so
    • Regularly communicate or visit with the minor
    • During any time the minor was not in the physical custody of the other parent, to manifest an ability and willingness to assume legal and physical custody of the minor
  • The respondent has been convicted of a crime of violence or has been found by a court of competent jurisdiction to have committed an act of violence that violated a restraining or protective order, and the facts of the crime or violation indicate that the respondent is unfit to maintain a relationship of parent and child with the minor.
  • An alleged father has failed to establish paternity.
Circumstances That Are Exceptions to Termination of Parental Rights

If the respondent has proved by a preponderance of evidence that he or she had good cause for not complying with the support and care provisions above or that, for compelling reasons, termination due to conviction of a crime is not justified, the court may not terminate the respondent’s parental rights to a minor except upon a finding by clear and convincing evidence that any one of the grounds [for termination] exists and that termination is in the best interests of the minor.

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 ‘permanent guardian’ means one or two adults appointed by the court to act as a parent for a child during the child’s minority. ‘Permanent guardianship’ means a legal guardianship of a minor that is intended to continue with the same guardian, based on the guardian’s express commitment, for the duration of the child’s minority.

The term ‘relative’ means a grandparent, great-grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew of a person, whether related to the person by the whole or the half blood, affinity, or adoption. The term does not include a person’s stepparent.

Purpose of Guardianship

An order for permanent guardianship may be issued under the following circumstances:

  • Neither parent is capable or willing to provide adequate care to the child, requiring that parental rights and responsibilities be awarded to a permanent guardian.
  • Neither returning the child to the parents nor adoption of the child is likely within a reasonable period of time.
A Guardian’s Rights and Responsibilities

A permanent guardian shall have parental rights and responsibilities for the child that include:

  • Providing the child with:
    • A healthy and safe living environment and daily care
    • Education
    • Necessary and appropriate health care, including medical, dental, and mental health care
  • Making decisions regarding:
    • Travel
    • Management of the child’s income and assets
    • The child’s right to marry or enlist in the armed forces
    • Representation of the child in legal actions
    • Any other matter that involves the child’s welfare and upbringing

The permanent guardian shall:

  • Before appointment, expressly commit to remain the permanent guardian and assume the parental rights and responsibilities for the child for the duration of the child’s minority
  • Be responsible to the court and the child for the health, education, and welfare of the minor
  • Comply with all terms of any court order to provide the child’s parent with visitation, contact, or information

While a permanent guardianship is in effect, the parent shall have the following rights:

  • Visitation, contact, and information to the extent delineated in the order issued by the family division of the superior court
  • Inheritance by and from the child
  • Right to consent to adoption of the child

After the court has issued a final order establishing permanent guardianship, the parent shall have no right to seek termination of the guardianship order. The parent may seek only enforcement or modification of an order of visitation, contact, or information.

Qualifying the Guardian

The court shall determine whether he proposed permanent guardian:

  • Is emotionally, mentally, and physically suitable to become the permanent guardian
  • Is financially suitable, with kinship guardianship assistance provided for in title 33, § 4903 if applicable, to become the permanent guardian
  • Has expressly committed to remain the permanent guardian for the duration of the child’s minority
  • Has expressly demonstrated a clear understanding of the financial implications of becoming a permanent guardian, including an understanding of any resulting loss of State or Federal benefits or other assistance
Procedures for Establishing Guardianship

The family division of the superior court may establish a permanent guardianship at a permanency planning hearing or at any other hearing in which a permanent legal disposition of the child can be made, including a child protection proceeding or a delinquency proceeding. The court also shall issue an order permitting or denying visitation, contact, or information with the parent at the same time the order of permanent guardianship is issued. Before issuing an order for permanent guardianship, the court shall find by clear and convincing evidence all of the following:

  • Neither parent is capable or willing to provide adequate care to the child, requiring that parental rights and responsibilities be awarded to a permanent guardian.
  • Neither returning the child to the parents nor adoption of the child is likely within a reasonable period of time.
  • The child is at least age 12, unless the proposed permanent guardian is a relative or the permanent guardian of one of the child’s siblings.
  • The child has resided with the permanent guardian for at least 1 year, or the permanent guardian is a relative with whom the child has a relationship and with whom the child has resided for at least 6 months.
  • A permanent guardianship is in the best interests of the child.

The parent may voluntarily consent to the permanent guardianship and shall demonstrate an understanding of the implications and obligations of the consent.

Contents of a Guardianship Order

The family division of the superior court shall issue an order regarding visitation, contact, and information based on the best interests of the child. The order may prohibit visitation, contact, and information. The order may incorporate an agreement reached among the parties.

After the family division of the superior court issues a final order establishing permanent guardianship, the case shall be transferred to the appropriate probate division of the superior court in the district in which the permanent guardian resides. Jurisdiction shall continue to lie in the probate division. Appeal of any decision by the probate division of the superior court shall be de novo to the family division.

The probate division of the superior court shall have exclusive jurisdiction to hear any action to enforce, modify, or terminate the initial order issued by the family division of the superior court for visitation, contact, or information. Upon a showing by affidavit of immediate harm to the child, the probate division of the superior court may temporarily stay the order of visitation or contact on an ex parte basis until a hearing can be held, or stay the order of permanent guardianship and assign parental rights and responsibilities to the Commissioner for Children and Families.

A breach by the permanent guardian of an order for visitation, contact, or information shall not be grounds for voiding or terminating the permanent guardianship. However, the court may enforce the order with all the powers and remedies of the court, including contempt.

A modification of an order of visitation or contact shall be based upon a finding by a preponderance of the evidence that there has been a substantial change in the material circumstances, and that the proposed modification is in the best interests of the child.

Modification/Revocation of Guardianship

A modification or termination of the permanent guardianship may be requested by the permanent guardian, the child if the child is age 14 or older, or the Commissioner for Children and Families. A modification or termination may also be ordered by the probate division of the superior court on its own initiative. When the permanent guardianship is terminated by the probate division of the superior court order or the death of the permanent guardian, the custody and guardianship of the child shall not revert to the parent, but to the Commissioner for Children and Families as if the child had been abandoned.

An order for modification or termination of the permanent guardianship shall be based on a finding by a preponderance of the evidence that there has been a substantial change in material circumstances, or that one or more findings required by subsection 2664(a) of this title no longer can be supported by the evidence, and that the proposed modification or termination is in the best interests of the child. The burden of proof shall be on the party seeking the modification or termination.

In the event that it is necessary to appoint a successor permanent guardian, the parent may be considered with no greater priority than a third party.

Eligibility for Guardianship Subsidy

The parent shall have the primary responsibility to support the child. In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the permanent guardian. The provision of necessities by the permanent guardian shall not disqualify the child for any benefit or entitlement.

If the child has been in the custody of the Commissioner for Children and Families immediately prior to the creation of the guardianship, the commissioner shall have no further duty of support or care for the child after the establishment of the permanent guardianship unless the family is eligible for kinship guardianship assistance or the commissioner contractually agrees in writing to that support.

The Department for Children and Families may expend, within amounts available for the purposes, what is necessary to protect and promote the welfare of children and adults in this State, including the strengthening of their homes whenever possible, by providing aid to a child in the permanent guardianship of a relative if the child was in the care and custody of the department and was placed in the home of the relative for at least 6 months prior to the creation of the guardianship.

Links to Agency Policies

Vermont Department for Children and Families, Family Services Policy Manual, Kinship Care (PDF – 135 KB)

Vermont Resource Guide for Relatives Caring for Children (PDF – 545 KB)

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

The Department for Children and Families shall provide information to relatives and others with a significant relationship with the child about options to take custody or participate in the care and placement of the child, about the advantages and disadvantages of the options, and about the range of available services and supports.

At the temporary custody hearing, the court may issue orders related to the legal custody of the child as it deems necessary to protect the welfare and safety of the child, including, in order of preference:

  • Returning legal custody of the child to the custodial parent
  • Transferring temporary legal custody to a noncustodial parent
  • Transferring temporary legal custody of the child to a relative, provided:
    • The relative seeking legal custody is a grandparent, great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.
    • The relative is suitable to care for the child.
  • Transferring temporary legal custody of the child to a relative who is not listed above or to a person with a significant relationship with the child
  • Transferring temporary legal custody of the child to the commissioner
Requirements for Placement with Relatives

In determining suitability of a relative to care for the child, the court shall consider the relationship of the child and the relative and the relative’s ability to:

  • Provide a safe, secure, and stable environment
  • Exercise proper and effective care and control of the child
  • Protect the child from the custodial parent to the degree the court deems such protection necessary
  • Support reunification efforts, if any, with the custodial parent
  • Consider providing legal permanence if reunification fails

In considering the suitability of a relative, the court may order the department to conduct an investigation and file a written report of its findings with the court. The court may place the child in the temporary custody of the department, pending such investigation.

Whenever the court orders the transfer of legal custody to a noncustodial parent, a relative, or a person with a significant relationship with the child, such orders shall be supported by findings regarding the suitability of that person to assume legal custody of the child and the safety and appropriateness of the placement.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

A relative is a grandparent, great-grandparent, sibling, first cousin, aunt, uncle, great-aunt, great-uncle, niece, or nephew of a person, whether related to the person by the whole-blood or the half-blood, affinity, or adoption. The term does not include a person’s stepparent.

Requirements for Adoption by Relatives

A preplacement evaluation is not required if a parent or guardian places a minor directly with a relative for purposes of adoption, but an evaluation of the relative is required during the pendency of a proceeding for adoption.

The evaluation shall indicate whether the person has been:

  • Subject to an abuse prevention order
  • Charged with or convicted of domestic assault
  • The subject of a substantiated complaint filed with the department
  • Subject to a court order restricting the person’s parental rights and responsibilities or parent-child contact with a child
  • Convicted of a crime other than a minor traffic violation

 

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ means the exercise of due diligence by the Department for Children and Families to use appropriate and available services to prevent unnecessary removal of the child from his or her home or to finalize a permanency plan.

When Reasonable Efforts Are Required

Reasonable efforts must be made to prevent unnecessary removal of the child from the home. In cases involving a child who has been removed from the home, reasonable efforts must be made to finalize the permanency plan for the child. Reasonable efforts to finalize a permanency plan and may consist of:

  • When the permanency plan for the child is reunification, efforts to reunify the child and family following the child’s removal from the home
  • When the permanency plan for the child does not include reunification, efforts to arrange and finalize an alternate permanent living arrangement for the child
When Reasonable Efforts Are NOT Required

When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances. If the court makes written findings that aggravated circumstances are present, the court may make but is not required to make written findings as to whether reasonable efforts were made to prevent removal of the child from the home. Aggravated circumstances include:

  • The parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse.
  • The parent has been convicted of murder or manslaughter of a child.
  • The parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent.
  • The parental rights of the parent with respect to a sibling have been terminated.

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

When parents are temporarily unable to care for their children, guardianship provides a process through which parents can arrange for family members or other parties to care for the children.

How to Establish a Standby Guardian

A child in need of guardianship is a child who the parties consent is in need of adult care because of any one of the following:

  • The child’s custodial parent has a serious or terminal illness.
  • A custodial parent’s physical or mental health prevents the parent from providing proper care and supervision for the child.
  • The child’s home is no longer habitable as the result of a natural disaster.
  • A custodial parent of the child is incarcerated.
  • A custodial parent of the child is on active military duty.
  • The parties have articulated and agreed to another reason that guardianship is in the best interests of the child.
How Standby Authority is Activated

A parent or a person interested in the welfare of a minor may file a petition with the Probate Division of the Superior Court for the appointment of a guardian for a child. The petition shall include:

  • The names and addresses of the parents, the child, and the proposed guardian
  • The proposed guardian’s relationship to the child
  • The names of all members of the proposed guardian’s household
  • Specific reasons with supporting facts why guardianship is sought
  • Whether the parties agree that the child is in need of guardianship and that the proposed guardian should be appointed as guardian

If the petition requests a consensual guardianship, the petition shall include a consent signed by the custodial parent or parents verifying that the parent or parents understand the nature of the guardianship and knowingly and voluntarily consent to the guardianship.

The court shall grant the petition if it finds after the hearing by clear and convincing evidence that:

  • The child is a child in need of guardianship, as defined above.
  • The child’s parents had notice of the proceeding and knowingly and voluntarily consented to the guardianship.
  • The agreement is voluntary.
  • The proposed guardian is suitable.
  • The guardianship is in the best interests of the child.

If the court grants the petition, it shall approve the agreement at the hearing and issue an order establishing a guardianship. The order shall be consistent with the terms of the parties’ agreement, unless the court finds that the agreement was not reached voluntarily or is not in the best interests of the child.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. Tit. 14, § 2622
A custodial parent is the parent who, at the time of the commencement of the guardianship proceeding, has the right and responsibility to provide the routine daily care and control of the child. The rights of the custodial parent may be held solely or shared and may be subject to the court-ordered right of the other parent to have contact with the child. If physical parental rights and responsibilities are shared pursuant to court order, both parents shall be considered ‘custodial parents’ for purposes of this subdivision.

Authority Relationship of the Parent and the Standby

It is in the interests of all parties, including the children, that parents and proposed guardians have a shared understanding about the length of time that they expect the guardianship to last, the circumstances under which the parents will resume care for their children, and the nature of the supports and services that are available to assist them.

On or before the date of the hearing, the parties shall file an agreement between the proposed guardian and the parents. The agreement shall address:

  • The responsibilities of the guardian
  • The responsibilities of the parents
  • The expected duration of the guardianship, if known
  • Parent-child contact and parental involvement in decision-making
Withdrawing Guardianship

A parent may file a motion to terminate a guardianship at any time. The motion shall be filed with the court that issued the guardianship order and served on all parties and interested persons.

If the motion to terminate is made with respect to a consensual guardianship established under § 2626 of this title, the court shall grant the motion and terminate the guardianship unless the guardian files a motion to continue the guardianship within 30 days after the motion to terminate is served.

If the guardian files a motion to continue the guardianship, the matter shall be set for hearing and treated as a nonconsensual guardianship proceeding under § 2627 of this title. The parent shall not be required to show a change in circumstances, and the court shall not grant the motion to continue the guardianship unless the guardian establishes by clear and convincing evidence that the minor is a child in need of guardianship.

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

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4th Circuit

5th Circuit

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8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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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