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

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

West Virginia

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abused child’ means a child whose health or welfare is being harmed or threatened by:

  • A parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict physical injury or mental or emotional injury upon the child or another child in the home, including an injury to the child as a result of excessive corporal punishment
  • Sexual abuse or sexual exploitation
  • The sale or attempted sale of a child by a parent, guardian, or custodian in violation of § 61-2-14h
  • Domestic violence as defined in § 48-27-202

‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. These conditions may include a situation when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited or there is reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:

  • Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, babysitter, or other caregiver
  • A combination of physical and other signs indicating a pattern of abuse that may be medically diagnosed as battered child syndrome
  • Sale or attempted sale of the child by the parent, guardian, or custodian
  • Any other condition that threatens the health, life, or safety of any child in the home

‘Serious physical abuse’ means bodily injury that creates a substantial risk of death, or causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.

Neglect

‘Neglected child’ means a child:

  • Whose physical or mental health is harmed or threatened by a present refusal, failure, or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education
  • Who is presently without necessary food, clothing, shelter, medical care, education, or supervision because of the disappearance or absence of the child’s parent or custodian

‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that the following conditions threaten the health or life of any child in the home:

  • Nutritional deprivation
  • Inadequate treatment of serious illness or disease
  • The impairment of the parent’s parenting skills due to abuse of alcohol, drugs, or other controlled substance, as defined § 60A-1-101, to such a degree as to pose an imminent risk to a child’s health or safety
Sexual Abuse/Exploitation

‘Imminent danger to the physical well-being of the child’ includes an emergency situation in which there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited.

‘Sexual abuse’ means:

  • Engaging in, attempting to engage in, or knowingly procuring another person to engage in sexual intercourse, sexual intrusion, or sexual contact with a child younger than age 16, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical, mental, or emotional injury as a result of such conduct
  • Engaging in, attempting to engage in, or knowingly procuring another person to engage in sexual intercourse, sexual intrusion, or sexual contact with a child age 16 or older, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical, mental, or emotional injury as a result of such conduct
  • Any conduct whereby a parent, guardian, or custodian displays his or her sex organs to a child or procures another person to display his or her sex organs to a child for the purpose of gratifying the sexual desire of the parent, guardian, or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child

‘Sexual exploitation’ means an act whereby a parent, guardian, or custodian:

  • Whether for financial gain or not, persuades, induces, entices, or coerces a child to engage in sexually explicit conduct
  • Persuades, induces, entices, or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian, or a third person, or to display his or her sex organs under circumstances in which the parent, guardian, or custodian knows such display is likely to be observed by others who would be affronted or alarmed
Emotional Abuse

The terms ‘child abuse and neglect’ or ‘child abuse or neglect’ include mental or emotional injury of a child by a parent, guardian, or custodian who is responsible for the child’s welfare, under circumstances that harm or threaten the health and welfare of the child.

‘Imminent danger to the physical well-being of the child’ includes substantial emotional injury inflicted by a parent, guardian, or custodian.

Abandonment

Citation: Ann. Code § 49-1-201
‘Abandonment’ means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child.

‘Imminent danger to the physical well-being of the child’ includes abandonment by the parent, guardian, or custodian.

Standards for Reporting

Citation: Ann. Code § 49-2-803

A report is required when a mandatory reporter has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect.

Persons Responsible for the Child

Responsible persons include the child’s parent, guardian, or custodian.

Exceptions

A child is not considered neglected when:

  • The lack of necessary food, clothing, shelter, or medical care is due primarily to a lack of financial means on the part of the parent.
  • The child’s education is conducted within the provisions of § 18-8-1 [which provides exemption from the State compulsory education requirement for private school enrollment or homeschooling].

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

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

  • Attempting to cause or intentionally, knowingly, or recklessly causing physical harm to another with or without dangerous or deadly weapons
  • Placing another in reasonable apprehension of physical harm
  • Creating fear of physical harm by harassment, stalking, psychological abuse, or threatening acts
  • Committing either sexual assault or sexual abuse
  • Holding, confining, detaining, or abducting another person against that person’s will
Defined in Child Abuse Reporting and Child Protection Laws

‘Abused child’ means a child whose health or welfare is harmed or threatened by domestic violence, as defined in § 48-27-202.

‘Battered parent’ means a parent, guardian, or other custodian who has been judicially determined not to have condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence, as defined by § 48-27-202, and the domestic violence was perpetrated by the person or persons determined to have abused or neglected the child or children.

Defined in Criminal Laws

‘Domestic battery’ means unlawfully and intentionally making physical contact of an insulting or provoking nature with a person’s family or household member or unlawfully and intentionally causing physical harm to a person’s family or household member.

‘Domestic assault’ means unlawfully attempting to commit a violent injury against a person’s family or household member or unlawfully committing an act that places a person’s family or household member in reasonable apprehension of immediately receiving a violent injury.

Persons Included in the Definition

‘Family or household members’ means persons who:

  • Are or were married to each other
  • Are or were living together as spouses
  • Are or were sexual or intimate partners
  • Are or were dating
  • Are or were residing together in the same household
  • Have a child in common regardless of whether they have ever married or lived together
  • Have the following relationships to another person:
    • Parent or stepparent
    • Brother, sister, half-brother, half-sister, stepbrother, or stepsister
    • Father-in-law or mother-in-law
    • Stepfather-in-law or stepmother-in-law
    • Child or stepchild
    • Daughter-in-law, son-in-law, stepdaughter-in-law, or stepson-in-law
    • Grandparent or stepgrandparent
    • Aunt, aunt-in-law, or stepaunt
    • Uncle, uncle-in-law, or stepuncle
    • Niece or nephew
    • First or second cousin
  • Have a relationship listed above to a family or household member

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

Except as otherwise provided below, all records and information concerning a child or juvenile that are maintained by the Division of Juvenile Services, the Department of Health and Human Resources, a child agency or facility, court, or law enforcement agency shall be kept confidential and shall not be released or disclosed to anyone, including any Federal or State agency.

Persons or Entities Allowed Access to Records

Notwithstanding the provisions above or any other provision of law to the contrary, records concerning a child or juvenile, except adoption records and records disclosing the identity of a person making a complaint of child abuse or neglect, shall be made available:

  • Where otherwise authorized by this chapter
  • To the child, a parent whose parental rights have not been terminated, or the attorney of the child or parent
  • With the written consent of the child or of someone authorized to act on the child’s behalf
  • Pursuant to an order of a court of record

In addition to those persons or entities listed above, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available, upon request, to:

  • Federal, State, or local government entities or any agent of such entities, including law enforcement agencies and prosecuting attorneys, having a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect
  • The child fatality review team
  • Child abuse citizen review panels
  • Multidisciplinary investigative and treatment teams
  • A grand jury, circuit court, or family court, upon a finding that information in the records is necessary for the determination of an issue
When Public Disclosure of Records is Allowed

In the event of a child fatality or near fatality due to child abuse and neglect, information relating to such fatality or near fatality shall be made public by the Department of Health and Human Resources and to the entities described above. Information released by the department shall not include the identity of a person reporting or making a complaint of child abuse or neglect.

Notwithstanding the provisions of this section, or any other provision of law to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person, official, or institution participating in good faith in any act permitted or required by the reporting laws shall be immune from any civil or criminal liability that otherwise might result by reason of such actions.

 

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 suspect that a child is abused or neglected or observes the child being subjected to conditions that are likely to result in abuse or neglect shall immediately, and no more than 48 hours after suspecting this abuse or neglect, report the circumstances or cause a report to be made to the Department of Health and Human Resources. In any case in which the reporter believes that the child suffered serious physical abuse, sexual abuse, or sexual assault, the reporter also shall report immediately to the State Police and any law enforcement agency having jurisdiction to investigate the complaint.

Any person over age 18 who receives a disclosure from a credible witness or observes any sexual abuse or sexual assault of a child shall immediately, and no more than 48 hours after receiving such a disclosure or observing the sexual abuse or sexual assault, make a report to the department or the State Police or other law enforcement agency having jurisdiction to investigate the report.

Content of Reports

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

Reporting Suspicious Deaths

Any mandated reporter who has reasonable cause to suspect that a child has died as a result of child abuse or neglect shall report that fact to the appropriate medical examiner or coroner.

Upon the receipt of such a report, the medical examiner or coroner shall cause an investigation to be made and report the findings to the police, the appropriate prosecuting attorney, the local child protective service agency, and, if the institution making a report is a hospital, to the hospital.

Reporting Substance-Exposed Infants

The Child Abuse Prevention and Treatment Act (CAPTA) is a key piece of Federal legislation that guides child protective services. This legislation requires that child protective services and other community service providers address the needs of newborn infants who have been identified as being affected by illegal drug abuse or experiencing withdrawal symptoms resulting from prenatal drug exposure. Health-care providers who are involved in the delivery or care of such infants are required to make a report to child protective services.

For reports of drug-affected infants or infants suffering from fetal alcohol spectrum disorder, the intake assessment worker and supervisor will follow all intake assessment policies that are applicable to the report. In addition, the intake assessment worker will gather the following information:

  • The name and address of the medical facility where the child was delivered
  • The infant’s drug results, if applicable, including the type of drug for which the infant tested positive
  • The birth mother’s drug test results, if applicable, including the type of drug for which she tested positive
  • Information from medical personnel as to the condition of the infant upon birth, including specific data as to how the in utero drug or alcohol exposure has affected the infant (e.g., withdrawal, physical and/or neurological birth defects)
  • The infant’s birth weight and gestational age
  • The extent of prenatal care received by the birth mother
  • The names and ages of any siblings the infant may have, including any abuse, neglect, or safety concerns regarding the siblings
Agency Receiving the Reports

Reports of child abuse and neglect shall be made immediately by telephone to the local State child protective service agency and shall be followed by a written report within 48 hours if so requested by the receiving agency. The department shall establish and maintain a 24-hour, 7-day-a-week telephone number to receive such calls reporting suspected or known child abuse or neglect.

A copy of any report of serious physical abuse, sexual abuse, or sexual assault shall be forwarded by the department to the appropriate law enforcement agency, the prosecuting attorney, or the coroner or medical examiner’s office. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.

Initial Screening Decisions

Whether or not to accept a referral for family functioning assessment is a critical decision in Child Protective Services (CPS). When making this decision, the supervisor must analyze all the information in the report to determine whether there is reasonable cause to suspect a child is abused or neglected or is subjected to conditions that will likely result in abuse or neglect.

CPS must accept for assessment any report that suggests that, assuming the reporter’s perceptions are true, an individual between birth and age 18 may have been subject to treatment that meets the definition of abuse or neglect in statute and CPS policy. A reporter need not have witnessed a specific injury nor does there have to be an injury for there to be a reason to believe that parental conduct results in a threat of harm to a child, which is included in the statutory definitions of an abused and neglected child.

Agency Conducting the Assessment/Investigation

The local CPS office shall investigate all reports of child abuse or neglect. Each local CPS office shall, upon notification of suspected child abuse or neglect, commence or cause to be commenced a thorough investigation of the report and the child’s environment.

Assessment/Investigation Procedures

The term ‘family functioning assessment’ refers to the function that is commonly referred to as investigation or initial assessment. The assessment determines who CPS will serve by assessing and reaching conclusions about caregivers who are unable or unwilling to protect their children from impending danger. The assessment provides a uniform, systematic, and structured approach to all family situations when a child is alleged to be abused or neglected.

Upon assignment of a report for assessment, the CPS worker will:

  • Review the report and all previous reports, records, and documentation on the family
  • Make face-to-face contact with the identified child within the response time assigned on the intake
  • Inform the caregivers of the child abuse or neglect allegations, the reason for the contact, and the process for completing the assessment
  • If at all possible, on the same day and in the following order, conduct interviews of the identified child, siblings, the nonmaltreating parent, the maltreating parent, and other adults in the home
  • Assess for present dangers and implement a protection plan, if necessary

Detailed information must be collected through interviews, observations, and written materials provided by knowledgeable individuals. The CPS worker must conduct sufficient numbers of interviews of sufficient length and effort necessary to assure that due diligence is demonstrated and sufficient information is collected to assess threats of serious harm and determine if the children are abused or neglected.

Timeframes for Completing Investigations

Each local CPS office shall respond immediately to all allegations of imminent danger to the physical well-being of the child or of serious physical abuse. As a part of this response, within 72 hours there shall be a face-to-face interview with the child or children and the development of a protection plan, which may involve law enforcement officers or the court.

In regulation: Response time is measured from the date and time the report is received by the department until face-to-face contact with the alleged victim child. The caregivers should be contacted the same day as the victim child unless contact will jeopardize child safety or extenuating circumstances exist (e.g., a caregiver is out of town). The response time is the maximum amount of time that the CPS worker has to make face-to-face contact in order to assess for present dangers and gather information to complete the family functioning assessment.

The selected response times are as follows:

  • Immediate response: CPS must respond to the report as soon as possible unless there is a protective caregiver. If a protective caregiver clearly is documented in the record, and a same-day response will in no way jeopardize child safety, face-to-face contact must be made no later than the same day of the referral.
  • 0-72 hour response: Face-to-face contact must be made with the child within 72 hours.
  • 0-14 day response: Face-to-face contact must be made with the child within 14 days.

If the report indicates imminent danger to the child, the response time must be a maximum of 72 hours; however the supervisor may instruct social workers to make contact with the children and caregivers sooner based on the information collected.

Classification of Reports

During the family functioning assessment, the CPS worker will gather information in family functioning assessment areas related to child safety. The specific, detailed information in the assessment must be analyzed in order to determine if maltreatment did or did not occur. The maltreatment finding is based on whether a preponderance of the evidence (e.g., eyewitness accounts, worker observations, medical reports, professional evaluations) obtained during the assessment would lead the worker to conclude that maltreatment did or did not occur.

 

Mandatory Reporters of Child Abuse and Neglect

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Current Through August 2015

Professionals Required to Report

The following professionals are required to report:

  • Medical, dental, or mental health professionals
  • Christian Science practitioners or religious healers
  • Teachers or other school personnel
  • Social service, child care, or foster care workers
  • Emergency medical services personnel
  • Peace officers, law enforcement officials, or humane officers
  • Members of the clergy
  • Circuit court judges, family court judges, employees of the Division of Juvenile Services, or magistrates
  • Youth camp administrators, counselors, employees, coaches, or volunteers of entities that provide organized activities for children
  • Commercial film or photographic print processors
Reporting by Other Persons

Nothing in this article is intended to prevent individuals from reporting suspected abuse or neglect on their own behalf. In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of children, any other person may make a report if that person has reasonable cause to suspect that a child has been abused or neglected in a home or institution or observes the child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

Institutional Responsibility to Report

Any person required to report who is a member of the staff or volunteer of a public or private institution, school, entity that provides organized activities for children, facility, or agency also shall immediately notify the person in charge of the institution, school, entity that provides organized activities for children, facility, or agency, or a designated agent thereof, who may supplement the report or cause an additional report to be made.

Standards for Making a Report

Any mandatory reporter who has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect shall report the circumstances or cause a report to be made to the Department of Health and Human Resources. In any case where the reporter believes that the child suffered serious physical abuse or sexual abuse or sexual assault, the reporter shall also immediately report, or cause a report to be made, to the State Police and any law-enforcement agency having jurisdiction to investigate the complaint.

Privileged Communications

The privileged quality of communications between husband and wife and between any professional person and his or her patient or client, except that between attorney and client, cannot be invoked in situations involving suspected or known child abuse or neglect.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

Not addressed in statutes reviewed.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when the parent, guardian, or custodian’s abuse of alcohol, drugs, or other controlled substance, as defined in § 60A-1-101, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety.

Any person age 18 or older who knowingly causes or permits a minor to be present in a location where methamphetamine is manufactured or attempted to be manufactured is guilty of a felony and, upon conviction, shall be confined in a State correctional facility for not less than 1 year nor more than 5 years, fined not more than $10,000, or both.

Notwithstanding the provisions above, the penalty for a violation of said subsection when the child suffers serious bodily injury shall be confinement in a State correctional facility for not less than 3 years nor more than 15 years, a fine of not more than $25,000, or both.

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In any child abuse or neglect proceeding, the child shall have the right to be represented by counsel at every stage of the proceedings. Counsel of the child shall be appointed by the court in the initial order.

Under no circumstances may the same attorney represent both the child and the other party or parties. However, if more than one child from a family is involved in the proceeding, one attorney may represent all the children.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Effective July 1, 2012, any attorney appointed pursuant to this section shall receive a minimum of 8 hours of continuing legal education training per reporting period on child abuse and neglect procedure and practice. In addition, after July 1, 2013, any attorney appointed to represent a child must first complete training on representation of children that is approved by the administrative office of the Supreme Court of Appeals. The Supreme Court of Appeals shall develop procedures for approval and certification of training required under this section by July 1, 2012. However, when no attorney who has completed this training is available for appointment, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the parent or child.

Specific Duties

Any attorney appointed pursuant to this section shall perform all duties required as an attorney licensed to practice law in the State of West Virginia.

How the Representative Is Compensated

The court may allow to each attorney so appointed a fee in the same amount that appointed counsel can receive in felony cases.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

The Department of Health and Human Resources shall develop a unified child and family case plan for every family wherein a person has been referred to the department after being allowed an improvement period or where the child is placed in foster care. The case plan must be filed within 60 days of the child coming into foster care or within 30 days of the inception of the improvement period, whichever occurs first. The department also may prepare a case plan for any person who voluntarily seeks child abuse and neglect services from the department or who is referred to the department by another public agency or private organization. The case plan provisions shall comply with Federal law and the rules of procedure for child abuse and neglect proceedings.

Who May Participate in the Case Planning Process

The department shall convene a multidisciplinary treatment team, which shall develop the case plan. Parents, guardians, or custodians shall participate fully in the development of the case plan, and the child also shall fully participate if he or she is sufficiently mature and the child’s participation is otherwise appropriate.

Contents of a Case Plan

The case plan requires the following information:

  • A description of the type of home or facility where the child is to be placed
  • A discussion of the safety and appropriateness of the placement
  • A discussion of whether the placement is the least-restrictive, most familylike available and in the close proximity to the parent’s home
  • If the child is placed a substantial distance from the home of the parents or in a different State, a discussion of why the placement is in the child’s best interests
  • A description of how the child will receive safe and proper care in this placement
  • A description of the child’s educational plan, whether he or she has remained in the same school he or she was attending at the time of removal, and how educational stability will be achieved
  • A description of the services that are to be provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home to facilitate the return of the child to his or her home or to secure a permanent placement for the child
  • A discussion of the services that will be provided to the child while in foster care in order to address the specific needs of the child
  • A discussion of the appropriateness of the services that have been provided to the child
  • A listing of the child’s siblings and their locations and the date of the court order sanctioning separation, if applicable
  • A description of the parents’ ability to contribute to the cost of placement
  • The recommended visitation plan
  • Documentation of the efforts to ensure that the child is returned home within the approximate time lines set out in the plan
  • Documentation of the concurrent efforts to achieve permanency should the services designed to achieve reunification be deemed unsuccessful
  • If return home is not the permanency plan for the child, a statement of why reunification is not appropriate that specifies in detail the alternative placement for the child, including approximate time lines for when such placement is expected to become a permanent placement
  • In the case of a child whose permanency plan is adoption or placement in another permanent home, documentation of the steps being taken to find a permanent living arrangement, including child specific recruitment efforts
  • A written description of the programs and services that will help children age 14 and older prepare for the transition from foster care to independence
  • Documentation of an age-appropriate plan for the child that educates him or her about family planning, pregnancy prevention, sexually transmitted infections, and other issues related to healthy sexual development
  • For a child who self-identifies as being sexually active, documentation of the supportive counseling offered to the child on the issues of abstinence and healthy sexual development
  • Documentation of the child’s health and education background and progress, including all medical appointments, counseling, individual education plans, school conferences, etc.

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

The term ‘permanency plan’ refers to that part of the case plan that is designed to achieve a permanent home for the child in the least restrictive setting available. The plan must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the plan. Reasonable efforts to place a child for adoption or with a legal guardian may be made at the same time reasonable efforts are made to prevent removal or to make it possible for a child to safely return home. If reunification is not the permanency plan for the child, the plan must state why reunification is not appropriate, detail the alternative placement for the child, and include approximate time lines for when such placement is expected to become a permanent placement.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

A permanency hearing shall be held:

  • Within 12 months of the child’s commitment to care and every 12 months thereafter
  • Within 30 days of a finding that reasonable efforts are not required and at least every 3 months thereafter until permanency is achieved

Any party may petition the court for review of the child’s case at any time. The court shall grant such petition upon a showing that there is a change in circumstances or needs of the child that warrants court review.

Persons Entitled to Attend Hearings

Any foster parent, preadoptive parent, or relative providing care for the child shall be given notice of and the opportunity to be heard at the permanency hearing.

Before the hearing, notice of the right to be present shall be provided to:

  • The child’s attorney
  • The child
  • The child’s parents
  • The child’s guardians
  • The child’s foster parents
  • Any preadoptive parent
  • Any relative providing care for the child
  • Any person entitled to notice and the right to be heard
  • Other persons as the court may direct

The child’s presence may be waived by the child’s attorney at the request of the child or if the child is younger than age 12 and would suffer emotional harm.

Determinations Made at Hearings

The purpose of the permanency hearing is:

  • To review the child’s case
  • To determine whether and under what conditions the child’s commitment to the Department of Health and Human Resources shall continue
  • To determine what efforts are necessary to provide the child with a permanent home
  • To determine if the department has made reasonable efforts to finalize the permanency plan

In the case of a child who has reached age 16, the court shall determine the services needed to assist the child to make the transition from foster care to Independent Living.

At the conclusion of the hearing the court shall, in accordance with the best interests of the child, enter an order containing all the appropriate findings. The court order shall state:

  • Whether or not the department made reasonable efforts to preserve the family and to prevent out-of-home placement or that the specific situation made the effort unreasonable
  • Whether or not the department made reasonable efforts to finalize the permanency plan and concurrent plan for the child
  • The appropriateness of the child’s current placement, including its distance from the child’s home and whether or not it is the least restrictive and most family-like one available
  • The appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement
  • The services required to meet the child’s needs and achieve permanency
Permanency Options

Permanency options include:

  • Return to the parent
  • Adoption
  • Legal guardianship
  • Permanent placement with a fit and willing relative
  • Another planned permanent living arrangement

In the case of any child for whom another planned permanent living arrangement is the permanency plan, the court shall:

  • Ask the child about his or her desired permanency outcome
  • Make a judicial determination explaining why, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the child
  • Provide in the court order compelling reasons why it continues to not be in the best interests of the child to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative

 

Determining the Best Interests of the Child

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Current Through March 2016

It is the purpose of this chapter to provide a system of coordinated child welfare and juvenile justice services for the children of this State. The State has a duty to assure that proper and appropriate care is given and maintained.

The child welfare and juvenile justice system shall:

  • Assure each child care, safety and guidance
  • Serve the mental and physical welfare of the child
  • Preserve and strengthen the child’s family ties
  • Recognize the fundamental rights of children and parents
  • Develop and establish procedures and programs that are family-focused rather than focused on specific family members, except where the best interests of the child or the safety of the community are at risk
  • Involve the child and the child’s family or the child’s caregiver in the planning and delivery of programs and services
  • Provide community-based services in the least restrictive settings that are consistent with the needs and potentials of the child and his or her family
  • Provide for early identification of the problems of children and their families, and respond appropriately to prevent abuse and neglect or delinquency
  • Provide for the rehabilitation of status offenders and juvenile delinquents
  • As necessary, provide for the secure detention of juveniles alleged or adjudicated delinquent
  • Provide for secure incarceration of children or juveniles adjudicated delinquent and committed to the custody of the director of the Division of Juvenile Services
  • Protect the welfare of the general public

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court shall terminate the parental rights of an abusing parent when:

  • The parent has subjected any child in the household to aggravated circumstances that include, but are not limited to, abandonment, torture, chronic abuse, and sexual abuse.
  • The parent has:
    • Committed murder or voluntary manslaughter of the child’s other parent, another child of the parent, or any other child residing in the same household
    • Attempted or conspired to commit such a murder or voluntary manslaughter
    • Committed a felonious assault that results in serious bodily injury to the child, the child’s other parent, or any other child residing in the same household
    • Committed sexual assault or sexual abuse of the child, the child’s other parent, guardian or custodian, another child of the parent or any other child residing in the same household
    • Has been required by State or Federal law to register with a sex offender registry
  • The parental rights of the parent to another child have been terminated involuntarily.
  • A parent has been required by State or Federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child’s interests would not be promoted by a preservation of the family.
  • The abusing parent has habitually abused or is addicted to alcohol, controlled substances, or drugs to the extent that proper parenting skills have been seriously impaired and such person or persons have not responded to or followed through the recommended and appropriate treatment.
  • The abusing parent has willfully refused to cooperate in the development of a reasonable family case plan designed to lead to the child’s return to their care, custody, and control.
  • The abusing parent has not responded to or followed through with a reasonable family case plan designed to reduce or prevent the abuse or neglect of the child.
  • The parent has abandoned the child.
  • The parent has repeatedly or seriously injured the child physically or emotionally or has sexually abused or sexually exploited the child.
  • The parent suffers from emotional illness, mental illness, or mental deficiency of such duration or nature as to render the parent incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills.
  • A battered parent’s parenting skills have been seriously impaired, and he or she has willfully refused or is presently unwilling or unable to cooperate in the development of a reasonable treatment plan or has not adequately responded to or followed through with the recommended and appropriate treatment plan.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition shall be filed when the child has been in foster care for 15 of the most recent 22 months. The Department of Health and Human Resources may determine not to file a petition to terminate parental rights when:

  • At the option of the department, the child has been placed with a relative.
  • The department has documented in the case plan a compelling reason, including, but not limited to, the child’s age and preference for termination, or the child’s placement in custody of the department based on another proceeding, that filing the petition would not be in the best interests of the child.
  • The department has not provided, when reasonable efforts to return a child to the family are required, the services to the child’s family that the department deems necessary for the safe return of the child to the home.
Circumstances Allowing Reinstatement of Parental Rights

Upon motion of a child, a child’s parent or custodian, or the department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing and may modify a dispositional order if the court finds by clear and convincing evidence a material change of circumstances and that such modification is in the child’s best interests; except a dispositional order terminating parental rights shall not be modified after the child has been adopted, except as provided below.

If the child is removed or relinquished from an adoptive home or other permanent placement after the case has been dismissed, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department, and the child’s counsel, and the court shall schedule a permanency hearing within 60 days. The department shall convene a multidisciplinary treatment team meeting within 30 days of the receipt of notice of permanent placement disruption.

If a child has not been adopted, the child or department may move the court to place the child with a parent or custodian whose rights have been terminated and/or restore such parent’s or guardian’s rights. Under these circumstances, the court may order such placement and/or restoration of a parent’s or guardian’s rights if it finds by clear and convincing evidence a material change of circumstances and that such placement and/or restoration is in the child’s best interests.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

‘Guardian’ means a person who has care and custody of a child as a result of any contract, agreement or legal proceeding.

In policy: For the purposes of the placement of children, the term ‘kinship/relatives’ means any person related to the child by blood or marriage, including cousins and in-laws. A person who the child considers a relative, such as a godparent or other significant person whom the child claims as kin, also may be considered as a placement resource.

Legal guardianship is a legally binding relationship between a child and a caregiver, other than the child’s biological parent, that may be considered as a permanent placement option for the child. This arrangement transfers all the rights and responsibilities for a child from the Department of Health and Human Resources to the caregiver through a court-sanctioned process. Parental rights are not required to be terminated in order for a child to be in a legal guardianship.

Purpose of Guardianship

The Department of Health and Human Resources is authorized by statute to utilize legal guardianship as a viable permanency option once reunification and adoption have been ruled out.

Permanency planning efforts should begin as soon as a child enters into the custody of the department or when it appears it may happen. All possible resources should be considered in order to arrive at the least restrictive, most appropriate environment for the child. Priority consideration must be given to the child’s relatives for the most suitable placement, provided the best interests of the child are the primary consideration. Throughout the life of the child’s case, appropriate family members should be sought out and considered for placement of the child or for family connections with the child.

The creation of a permanent family for children in custody is the main objective for children that are unable to be reunified with their family of origin. Adoption must be the primary choice for permanency planning, with other alternatives being considered only after adoption has been ruled out. Once reunification and adoption have been ruled out, legal guardianship may be considered, provided it would be in the child’s best interests.

A Guardian’s Rights and Responsibilities

A legal guardianship is a judicially created and legally binding relationship between a child and caregiver that is intended to be permanent and self-sustaining as evidenced by the transfer to the caregiver of the following parental rights with respect to the child: protection, education, care, and control of the child; custody of the child; and decision-making. Parental rights are not required to be terminated in order to sanction a legal guardianship under § 49-2-17.

Subsidized legal guardianship is the transfer of legal responsibility for a minor child from the State to a private certified caregiver or guardian, who is provided with a monthly subsidy and/or medical card for the care and support of the child. The transfer of legal responsibility removes the child from the child welfare system, allows a caregiver to make important decisions on the child’s behalf, establishes a long-term caregiver for the child, and addresses the child’s financial needs through ongoing subsidy.

Qualifying the Guardian

Legal guardianship should be considered for a child when the following conditions have been met:

  • The permanency goals of reunification and adoption have been ruled out and the reasons are documented in the case record.
  • The child has resided with the prospective guardian for at least 6 months immediately prior to establishing legal guardianship and was eligible for foster care maintenance payments.
  • The guardianship home was certified or approved as meeting the requirements as a foster home during the 6 months prior to establishing legal guardianship.
  • The child must be at least age 12 if he or she is in the home of an unrelated caregiver, unless it is decided by the department that it would be in the child’s best interest to do legal guardianship at a younger age. There is no age limit when the caregiver is a kin/relative, provided it is in the child’s best interests.
  • The best interests determination must be documented in the child’s case plan.
  • The child must have a strong attachment to the prospective legal guardian and the guardian must have a strong commitment to caring permanently for the child.
  • The child who is age 14 or older has been consulted regarding the guardianship arrangement.
Procedures for Establishing Guardianship

Legal guardianship is the permanent transfer of legal responsibility for a child in State custody to either a kin/relative or an individual other than his or her parents. Unless specified otherwise by the court, a grant of custody of a child to the department by the court is sufficient for the department to transfer legal guardianship. The department may consent to the transfer of legal guardianship when certain conditions are met.

Court action is necessary to transfer custody of the child from the department to the legal guardian. The prospective legal guardian’s attorney will petition the court to request the change in legal custody of the child. A copy of the legal guardian’s home study, a copy of the child’s posttermination placement plan, any termination of parental rights documentation, an original signed subsidized guardianship agreement, the application for subsidized guardianship, and an original signed consent must be submitted to the attorney for the prospective legal guardian for filing with the petition. The child’s caseworker will ensure the prospective legal guardian, the child, the child’s birth parents (if termination of parental rights has not occurred), and the child’s attorney are notified of the date and location of the hearing.

At the hearing, the court will determine whether to grant the request for transfer of custody. The child’s caseworker and prospective legal guardians must attend the hearing.

Contents of a Guardianship Order

After the finalization of the legal guardianship, the child’s caseworker will provide the legal guardians with one original signed agreement, a certified copy of the court order, and the child’s original birth certificate.

Modification/Revocation of Guardianship

The legal guardianship agreement will terminate when the child reaches age 18 or is otherwise emancipated.

As soon as the department becomes aware that a legal guardianship may be disrupted, a caseworker will make contact with the family to determine what, if anything, the department can do to preserve the legal guardianship placement.

If the child is removed from an adoptive home or other permanent placement after the case has been dismissed from the court’s docket, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department, and the child’s counsel. The court shall schedule a permanent placement review conference within 60 days, with notice given to any appropriate parties and persons entitled to notice and the right to be heard. The department shall convene a multidisciplinary treatment team meeting within 30 days of the receipt of notice of permanent placement disruption.

If the child is placed into the custody of the department, the department worker must make an appropriate placement for the child.

If the child’s guardianship placement is disrupted due to the guardian’s death or inability to continue providing for the child, provided the guardian named a successor guardian at the time the agreement was signed, the child may move to reside with the successor guardian.

Eligibility for Guardianship Subsidy

For a legal guardianship subsidy, the children must be in special circumstances because one or more of the following conditions inhibit their guardianship placement:

  • They have a physical or mental disability or are emotionally disturbed.
  • They are older children, part of a sibling group, or members of a racial or ethnic minority.

The department shall provide assistance in the form of subsidies or other services to parents who are found and approved for legal guardianship of a child certified as eligible for subsidy. Before the order of legal guardianship is entered, there must be a written agreement between the family entering into the subsidized legal guardianship and the department.

After reasonable efforts have been made without the use of subsidy and no appropriate legal guardian has been found for the child, the department shall certify the child as eligible for a subsidy in the event of legal guardianship. Reasonable efforts to place a child without a subsidy shall not be required if it is in the best interests of the child because of such factors as the existence of significant emotional ties developed between the child and the prospective guardian while in care as a foster child.

In policy: For a child to be eligible to receive title IV-E kinship guardianship assistance, the child had to be title IV-E eligible while in foster care with the prospective relative guardian for 6 consecutive months. The child must meet all eligibility requirements for title IV-E foster care, including the requirement that the child was removed from an AFDC-eligible home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child and placed in an approved home. The child must be in foster care for at least 6 consecutive months with the prospective kin/relative guardian before finalizing the legal guardianship and receiving the subsidy.<

Links to Agency Policies

West Virginia Department of Health and Human Resources, Legal Guardianship Policyexternal link (PDF – 157 KB)

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

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

Requirements for Placement with Relatives

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

Requirements for Placement of Siblings

When a child is in foster care or becomes eligible for adoption, and a sibling has previously been placed in foster care or been adopted, the Department of Health and Human Resources shall notify the foster or adoptive parents of the sibling of the child’s availability for foster placement or adoption to determine if the foster or adoptive parents want to seek a foster placement or adoption of the child.

When a child is in foster care and is living separately from a sibling who is in another foster home or who has been adopted by another family, and the parents with whom the sibling resides want to adopt or provide foster care so that the child may be reunited with a sibling, the department shall place the child in the household with the sibling upon a determination of the fitness of all household members and if the placement is in the best interests of the children. If, however, the department finds that residing in the same home would have a harmful physical, mental, or psychological effect on one or more of the siblings, or the child has a physical or mental disability that the existing foster home can better accommodate, or if the department can document that the reunification of the siblings would not be in the best interests of one or all of the children, the department may petition the court to allow the separation of the siblings to continue. If the child is age 12 or older, the department shall provide the child the option of remaining in the existing foster care placement if remaining is in the best interests of the child.

When two or more siblings are in separate foster care placements and the foster parents of the siblings have applied to provide foster care for a sibling not in their home or two or more adoptive parents seek to adopt a sibling of a child they have previously adopted, the department’s determination as to placing the child in a foster or adoptive home shall be based solely upon the best interests of the siblings.

Relatives Who May Adopt

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

Requirements for Adoption by Relatives

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

 

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

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Current Through March 2016

What Are Reasonable Efforts

‘Child abuse and neglect services’ means social services that are directed toward:

  • Protecting and promoting the welfare of children who are abused or neglected
  • Identifying, preventing, and remedying conditions that cause child abuse and neglect
  • Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems that could lead to a removal of children and a breakup of the family
  • In cases in which children have been removed from their families, providing time-limited reunification services to the children and the families so as to reunify those children with their families or some portion thereof
  • Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate
  • Assuring the adequate care of children or juveniles who have been placed in the custody of the Department of Health and Human Resources or third parties

The term ‘time-limited reunification services’ means individual, group, and family counseling; inpatient, residential, or outpatient substance abuse treatment services; mental health services; assistance to address domestic violence; services designed to provide temporary child care and therapeutic services for families, including crisis nurseries and transportation to or from those services, provided during 15 of the most recent 22 months a child has been in foster care, as determined by the earlier date of the first judicial finding that the child is subjected to abuse or neglect or the date that is 60 days after the child is removed from home.

Reasonable efforts are measures taken by the department to provide remedial and reunification services.

When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To preserve the family and to prevent placement
  • To eliminate the need for removing the child from the child’s home
  • To make it possible for the child to return home safely
When Reasonable Efforts Are NOT Required

The department is not required to make reasonable efforts to preserve the family if the court determines:

  • The parent has subjected the child, another child of the parent, or any other child residing in the same household to aggravated circumstances, including abandonment, torture, chronic abuse, and sexual abuse.
  • The parent has:
    • Committed murder or voluntary manslaughter of the child’s other parent, another child of the parent, or any other child residing in the same household
    • Attempted or conspired to commit such a murder or voluntary manslaughter
    • Committed a felonious assault that results in serious bodily injury to the child, the child’s other parent, to another child of the parent, or any other child residing in the same household
    • Committed sexual assault or sexual abuse of the child, the child’s other parent, another child of the parent, or any other child residing in the same household
    • Has been required by State or Federal law to register with a sex offender registry
  • The parental rights of the parent to another child have been terminated involuntarily.
  • The parent has habitually abused or is addicted to alcohol, controlled substances, or drugs, to the extent that proper parenting skills have been seriously impaired.
  • The parent has refused to cooperate in the development of a reasonable family case plan.
  • The abusing parent or parents have not responded to rehabilitative efforts designed to reduce or prevent the abuse or neglect of the child.
  • The parent has abandoned the child.
  • The parent has an emotional illness, mental illness, or mental deficiency of such duration or nature as to render such parent incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills.
  • The abusing parent has repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child.
  • The battered parent’s parenting skills have been seriously impaired, and the person has willfully refused or is presently unwilling or unable to cooperate with a reasonable treatment plan.

 

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent, functional parent, or any person acting on a parent’s behalf may petition for a standby guardian for a child of a qualified parent. ‘Qualified parent’ means a parent who has been diagnosed by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease, or illness from which, to a reasonable degree of medical probability, the patient cannot recover and that is likely to lead to debilitation or incompetence.

How to Establish a Standby Guardian

Upon petition, the court may approve a person as standby guardian for a child of a qualified parent upon the occurrence of a specific triggering event. The petition shall include:

  • The name and address of the petitioner and his or her relationship to the child, the name and address of the child’s qualified parent, and the name and address of any other parent of the child whose identity and whereabouts are known
  • The name, address, and birth date of the child
  • The proposed triggering event
  • Whether a determination of incompetence or debilitation has been made
  • Whether there is a significant risk that the qualified parent will die imminently, become physically or mentally incapable of caring for the child, or die as a result of a progressive chronic condition or illness
  • The name and address of the proposed standby guardian
  • Any known reasons why the child’s other parent is not assuming or should not assume the responsibilities of a standby guardian

When a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be appointed only with the consent of the qualified parent, unless the court finds that such consent cannot be given for medical reasons.

A parent may execute a written designation of a standby guardian at any time. The written designation shall be signed by the parent and witnessed by two adults.

Children who are age 14 or older must be notified of any hearing.

How Standby Authority is Activated

The authority of the standby guardian is effective:

  • Upon receipt by the standby guardian of a determination of incompetence or a certificate of death
  • If so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified parent and filing of the consent with the court

A court-approved standby guardian then has 30 days to file confirming documents with the court. A standby guardian by written designation must petition the court for approval as soon as possible, but no later than 30 days after the triggering event.

If the parent has died, the standby guardian has 90 days to petition for the appointment of a permanent guardian or initiate proceedings to determine custody of the child.

Involvement of the Noncustodial Parent

Citation: Ann. Code § 44A-5-3
Each parent whose identity and whereabouts are known must receive notice and a copy of the petition; he or she has 10 days to request a hearing. The court cannot proceed if a custody case is pending.

Authority Relationship of the Parent and the Standby

The standby guardian temporarily assumes the duties of guardian of the child on behalf of or in conjunction with a qualified parent upon the occurrence of a triggering event. This enables the parent to plan for the future of the child without terminating parental or legal rights. It creates co-guardianship rights between a parent and the standby guardian, giving the standby guardian authority to act in a manner consistent with the known wishes of a qualified parent regarding the care, custody, and support of the child.

When a standby guardian’s authority is effective due to debilitation or incompetence of the parent, the standby guardian’s authority to act on behalf of the parent continues even when the parent is restored to health unless the parent notifies the guardian and, if appropriate, the court, in writing.

Withdrawing Guardianship

The authority of a standby guardian who has been approved by the court may be revoked by the parent by filing a notice of revocation with the court.

At any time following his or her approval by the court, a standby guardian may decline to serve by filing a written statement of refusal with the court and having the statement personally served on the parent.

When a written designation has been executed but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing.

A written designation may also be revoked by the execution of a subsequent inconsistent designation.

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.

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US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

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9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

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CPS Statutes

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

 

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

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

1st Circuit

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US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

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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.”)

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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.  

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

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US Supreme Court

CPS Statutes

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

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

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

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US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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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.

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US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

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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.  

 

 

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

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

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US Supreme Court

CPS Statutes

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

 

 

1st Circuit

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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).

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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

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9th Circuit

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US Supreme Court

CPS Statutes

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

 

 

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