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

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

Wisconsin

 

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

 

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Abuse’ means any of the following:

  • Physical injury inflicted on a child by other than accidental means
  • When used in referring to an unborn child, serious physical harm inflicted on the unborn child and the risk of serious physical harm to the child when born caused by a habitual lack of self-control of the expectant mother of the unborn child in the use of alcoholic beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree
  • Manufacturing methamphetamine in violation of § 961.41(1)(e) under any of the following circumstances:
    • With a child physically present during the manufacture
    • In a child’s home, on the premises of a child’s home, or in a motor vehicle located on the premises of a child’s home
    • Under any circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child

‘Physical injury’ includes, but is not limited to, lacerations, fractured bones, burns, internal injuries, severe or frequent bruising, or great bodily harm.

‘Incident of death or serious injury’ means an incident in which a child has died or been placed in serious or critical condition, as determined by a physician, as a result of any suspected abuse or neglect that has been reported, or in which a child who has been placed outside the home by a court order is suspected to have committed suicide.

‘Incident of egregious abuse or neglect’ means an incident of suspected abuse or neglect that has been reported under this section, other than an incident of death or serious injury, involving significant violence, torture, multiple victims, the use of inappropriate or cruel restraints, exposure of a child to a dangerous situation, or other similar, aggravated circumstances.

Neglect

‘Neglect’ means failure, refusal, or inability on the part of a caregiver, for reasons other than poverty, to provide necessary care, food, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child.

Sexual Abuse/Exploitation

The term ‘abuse’ includes any of the following:

  • Sexual intercourse or sexual contact
  • Sexual exploitation of a child
  • Permitting, allowing, or encouraging a child to engage in prostitution
  • Causing a child to view or listen to sexual activity
  • The exposure of one’s genitals to a child
Emotional Abuse

The term ‘abuse’ includes emotional damage for which the child’s parent, guardian, or legal custodian has neglected, refused, or been unable for reasons other than poverty to obtain the necessary treatment or to take steps to ameliorate the symptoms.

‘Emotional damage’ means harm to a child’s psychological or intellectual functioning. ‘Emotional damage’ shall be evidenced by one or more of the following characteristics exhibited to a severe degree: anxiety, depression, withdrawal, or outward aggressive behavior; a substantial and observable change in behavior or emotional response; or cognition that is not within the normal range for the child’s age and stage of development.

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Ann. Stat. § 48.981
A report is required when a mandatory reporter has reasonable cause to suspect that a child seen by the person in the course of his or her professional duties has been abused or neglected or has reason to believe that a child seen by the person in the course of his or her professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur.

Persons Responsible for the Child

‘Caregiver’ means, with respect to a child who is the victim or alleged victim of abuse or neglect or who is threatened with abuse or neglect, any of the following persons:

  • The child’s parent, grandparent, great-grandparent, stepparent, brother, sister, stepbrother, stepsister, half-brother, or half-sister
  • The child’s guardian or legal custodian
  • A person who resides or has resided regularly or intermittently in the same dwelling as the child
  • An employee of a residential facility or residential care center for children and youth in which the child was or is placed
  • A person who provides or has provided care for the child in or outside of the child’s home
  • Any other person who exercises or has exercised temporary or permanent control over the child or who temporarily or permanently supervises or has supervised the child
  • Any relative of the child other than one listed above
Exceptions

It is not considered neglect when the failure to provide a child with necessary care, food, clothing, shelter, medical, or dental care is due to poverty.

 

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Domestic abuse’ means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver’s care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:

  • Intentional infliction of physical pain, physical injury, or illness
  • Intentional impairment of physical condition
  • A violation of § 940.225 (sexual assault)
  • A violation of § 943.01 (damage to property) involving property that belongs to the individual
  • A threat to engage in the conduct described above
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Domestic abuse’ means any of the following engaged in by any person listed below:

  • Intentional infliction of physical pain, physical injury, or illness
  • Intentional impairment of physical condition
  • A violation of § 940.225 (sexual assault)
  • A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described above
Persons Included in the Definition

In civil law: Domestic abuse may be engaged in:

  • By an adult family or household member against another adult family or household member
  • By an adult caregiver against an adult who is under the caregiver’s care
  • By an adult against his or her adult former spouse
  • By an adult against an adult with whom the individual has or had a dating relationship
  • By an adult against an adult with whom the person has a child in common

‘Caregiver’ means an individual who is a provider of in-home or community care to an individual through regular and direct contact.

‘Dating relationship’ means a romantic or intimate social relationship between two adult individuals. It does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context.

In criminal law: An adult person can engage in domestic abuse against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided, or against an adult with whom the person has a child in common.

 

Disclosure of Confidential Child Abuse and Neglect Records

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Current Through June 2013

Confidentiality of Records

All reports made under this section and records maintained by an agency and other persons, officials, and institutions shall be confidential.

Persons or Entities Allowed Access to Records

Reports and records may be disclosed only to the following persons:

  • The subject of a report
  • The mandated reporter who made a report of abuse involving the subject child
  • Appropriate staff of an agency or a Tribal social services department
  • A person providing or authorized to provide intake or dispositional services for the court
  • An attending physician for purposes of diagnosis and treatment
  • A child’s parent, guardian, or legal custodian
  • A child’s foster parent, treatment foster parent, or other person having physical custody of the child, or a person having physical custody of the expectant mother of an unborn child
  • A relative of a child placed outside of his or her home to the extent necessary to facilitate the establishment of a relationship between the child and the relative
  • A professional employee of a county department who is working with the child or the expectant mother of the unborn child
  • A multidisciplinary child abuse and neglect or unborn child abuse team
  • A person employed by a child advocacy center
  • A law enforcement officer, law enforcement agency, or district attorney for purposes of investigation or prosecution
  • The Department of Corrections, the Department of Health Services, a county department, or any other person under contract with those departments to exercise custody or supervision over a person who is subject to community placement for purposes of investigating or providing services
  • A court or administrative agency for use in a proceeding relating to the licensing or regulation of a facility regulated under this chapter
  • A court conducting proceedings in which abuse or neglect of the child or the unborn child who is the subject of the report or record is an issue
  • A Tribal court or other adjudicative body authorized by a Tribe or Band to perform child welfare functions
  • The county corporation counsel, district attorney, or agency legal counsel
  • The child’s counsel or guardian ad litem
  • An attorney representing the interests of an Indian Tribe or Band or Indian child
  • A volunteer court-appointed special advocate (CASA) or person employed by a CASA program
  • A person engaged in bona fide research
  • The department, a county department, or a licensed child welfare agency ordered to conduct a screening or an investigation of a stepparent
  • A grand jury when it is necessary for the conduct of its official business
  • A judge conducting proceedings under § 968.26
  • A child fatality review team
  • A citizen review panel
  • A coroner, medical examiner, pathologist, or other physician investigating the cause of death of a child
  • A Federal agency, State agency of this State or any other State, or local governmental unit located in this State or any other State that has a need for a report or record in order to carry out its responsibility to protect children
When Public Disclosure of Records is Allowed

If an agency has reason to suspect that an incident of death or serious injury or egregious abuse or neglect has occurred, within 2 working days the agency shall provide the following information to the subunit of the department responsible for statewide oversight of child abuse and neglect programs:

  • Information about the child, including the child’s age
  • The date of the incident and the suspected cause of the death, serious injury, or egregious abuse or neglect
  • A brief history of any reports received in which the child, a member of the child’s family, or the person suspected of the abuse or neglect was the subject and of any services offered or provided to any of those persons
  • A statement of whether the child was residing in his or her home or was placed outside the home when the incident occurred

Within 2 working days after receiving the information, the department shall disclose to the public:

  • That the information was received
  • Whether the department is conducting a review of the incident
  • Whether the child was residing in the home or was placed in an out-of-home placement at the time of the incident
  • Information about the child, including the child’s age

The disclosure of information may not include any of the following:

  • The identity of the child, any member of the child’s family, any member of the child’s household who is a child, or any caregiver of the child
  • The identity of the person suspected of the abuse or neglect
  • The identity of a reporter
  • Any information the disclosure of which would not be in the best interests of the child, any member of the child’s family, any member of the child’s household who is a child, or any caregiver of the child
  • Any disclosure that is not authorized by State or Federal law or regulation
Use of Records for Employment Screening

Reports and records may be disclosed to a public or private agency in this State or any other State that is investigating a person for purposes of licensing the person to operate a foster home or placing a child for adoption in the home of the person.

 

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Any person or institution participating in good faith in making a report, conducting an investigation, ordering or taking photographs, or ordering or performing medical examinations of a child or an expectant mother pursuant to this section shall have immunity from any liability, civil or criminal, that results by reason of the action.

For the purpose of any civil or criminal proceeding, the good faith of any person reporting under this section shall be presumed.

The immunity provided herein does not apply to liability for abusing or neglecting a child or for abusing an unborn child.

 

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 has been abused or neglected immediately shall make a report, either by telephone or personally.

Content of Reports

The report must include the facts and circumstances contributing to a suspicion of child abuse or neglect or of unborn child abuse or to a belief that abuse or neglect will occur.

Reporting Suspicious Deaths

A mandated reporter who has reasonable cause to suspect that a child has died as a result of abuse or neglect shall report that fact to the appropriate medical examiner or coroner. The medical examiner or coroner shall accept the report for investigation and shall report the findings to the appropriate district attorney, the department, and if the institution making the report initially is a hospital, to the hospital.

Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Reports shall be made to the county department or, in a county having a population of 500,000 or more, the Department of Children and Families; a licensed child welfare agency under contract with the department; the sheriff; or city, village, or town police department.

Initial Screening Decisions

Immediately after receiving a report, the agency shall evaluate the report to determine whether there is reason to suspect that a caregiver has abused or neglected the child or has threatened the child with abuse or neglect.

The term ‘substantial abuse or neglect’ means abuse or neglect or threatened abuse or neglect that constitutes severe abuse or neglect or a threat of severe abuse or neglect and a significant threat to the safety of a child and his or her family.

The department shall establish a pilot program under which a selected agency or a county department may employ alternative responses to a report of abuse or neglect or of threatened abuse or neglect. Immediately after receiving a report, the agency or county department shall evaluate the report to determine the most appropriate alternative response to the report. Based on that evaluation, the agency or county department shall respond to the report as follows:

  • If the agency or county department determines that there is reason to suspect that substantial abuse or neglect has occurred or is likely to occur or that an investigation is otherwise necessary to ensure the safety of the child and his or her family, the agency shall investigate the report.
  • If, in conducting that investigation, the agency or county department determines that it is not necessary for the safety of the child to complete the investigation, the agency or county department may terminate the investigation and conduct an assessment.
  • If the agency determines that there is reason to suspect that abuse or neglect, other than substantial abuse or neglect, has occurred or is likely to occur, but that under the guidelines developed by the department there is no immediate threat to the safety of the child and his or her family and court intervention is not necessary, the agency shall conduct a comprehensive assessment.
Agency Conducting the Assessment/Investigation

If the report is of suspected or threatened abuse, the sheriff or police department and the county department, department, or licensed child welfare agency under contract with the department shall coordinate the planning and execution of the investigation of the report.

If the agency or county department determines that there is reason to suspect that substantial abuse or neglect has occurred or is likely to occur or that an investigation is otherwise necessary to ensure the safety of the child and his or her family, the agency or county department shall investigate the report. If the agency or county department determines that there is reason to suspect that abuse or neglect, other than substantial abuse or neglect, has occurred or is likely to occur, but that there is no immediate threat to the safety of the child and his or her family and court intervention is not necessary, the agency or county department shall conduct a comprehensive assessment.

Assessment/Investigation Procedures

The investigation shall include observation of or an interview with the child, and, if possible, an interview with the child’s parents. If the investigation is of a report of child abuse or neglect by a caregiver who continues to reside in the same dwelling as the child, the investigation also shall include, if possible, a visit to that dwelling. The agency may contact, observe, or interview the child at any location without permission from the child’s parent, if necessary, to determine if the child is in need of protection or services.

If the agency determines that there is reason to suspect that abuse or neglect has occurred or is likely to occur, but that there is no immediate threat to the safety of the child and his or her family and court intervention is not necessary, the agency shall conduct a comprehensive assessment of the safety of the child and his or her family, including the risk of subsequent abuse or neglect and the strengths and needs of the child’s family, to determine whether services are needed to address the issues assessed and, based on the assessment, shall offer to provide appropriate services to the child’s family on a voluntary basis or refer the child’s family to a service provider in the community for the provision of those services.

If the agency or county department employs the assessment response, the agency is not required to refer the report to the sheriff or police department or determine by a preponderance of the evidence that abuse or neglect has occurred or is likely to occur or that a specific person has abused or neglected the child.

Timeframes for Completing Investigations

Within 24 hours after receiving the report the agency or the county department shall initiate a diligent investigation to determine if the child is in need of protection or services.

The determination of whether abuse has occurred shall be made within 60 days of receipt of the report.

Classification of Reports

The county department, department, or a licensed child welfare agency shall determine whether abuse or neglect has occurred or is likely to occur. The determination shall be based on a preponderance of the evidence produced by the investigation.

 

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:

  • Physicians, coroners, medical examiners, nurses, dentists, chiropractors, optometrists, acupuncturists, other medical or mental health professionals, physical therapists, physical therapist assistants, dietitians, occupational therapists, speech-language pathologists, audiologists, or emergency medical technicians
  • Schoolteachers, administrators, or counselors
  • School employees not otherwise specified above
  • Child care workers in child care centers, group homes, or residential care centers, or child care providers
  • Alcohol or other drug abuse counselors, marriage and family therapists, professional counselors, or members of the treatment staff employed by or working under contract with a county department or a residential care center for children and youth
  • Social workers, public assistance workers, first responders, police or law enforcement officers, mediators, or court-appointed special advocates
  • Members of the clergy or a religious order, including brothers, ministers, monks, nuns, priests, rabbis, or sisters
Reporting by Other Persons

Any person, including an attorney, who has reason to suspect that a child has been abused or neglected or who has reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect of the child will occur may report.

Institutional Responsibility to Report

No person making a report in good faith may be discharged from employment, disciplined, or otherwise discriminated against in regard to employment or threatened with any such treatment for so doing.

Standards for Making a Report


A report is required when:

  • A reporter, in the course of his or her professional duties, has reasonable cause to suspect that a child has been abused or neglected.
  • A reporter, in the course of his or her professional duties, has reason to believe that a child has been threatened with abuse or neglect or that abuse or neglect will occur.
Privileged Communications

A member of the clergy is not required to report child abuse information that he or she receives solely through confidential communications made to him or her privately or in a confessional setting if he or she is authorized to hear or is accustomed to hearing such communications and, under the disciplines, tenets, or traditions of his or her religion, has a duty or is expected to keep those communications secret. Those disciplines, tenets, or traditions need not be in writing.

A person delegated care and custody of a child under § 48.979, including a court-appointed special advocate, is not required to report any suspected or threatened abuse or neglect of the child. Such a person who has reason to suspect that the child has been abused or neglected or who has reason to believe that the child has been threatened with abuse or neglect and that the abuse or neglect of the child will occur may report.

Inclusion of Reporter’s Name in Report

Not addressed in statutes reviewed.

Disclosure of Reporter Identity

The identity of the reporter shall not be disclosed to the subject of the report.

 

Parental Drug Use as Child Abuse

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Current Through April 2015

A child may be held [in physical custody] if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and probable cause exists to believe that the child is an expectant mother, that if the child expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother’s habitual lack of self-control in the use of alcoholic beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.

An adult expectant mother of an unborn child may be held [in physical custody] if the intake worker determines that there is probable cause to believe that the adult expectant mother is within the jurisdiction of the court, to believe that if the adult expectant mother is not held there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the adult expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and to believe that the adult expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her.

‘Abuse,’ other than when used in referring to abuse of alcohol beverages or other drugs, means any of the following:

  • When used in referring to an unborn child, serious physical harm inflicted on the unborn child, and the risk of serious physical harm to the child when born, caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcoholic beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree
  • Manufacturing methamphetamine in violation of § 961.41(1)(e) under any of the following circumstances:
    • With a child physically present during the manufacture
    • In a child’s home, on the premises of a child’s home, or in a motor vehicle located on the premises of a child’s home
    • Under any other circumstances in which a reasonable person should have known that the manufacture would be seen, smelled, or heard by a child

 

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

If a child is alleged to be in need of protection or services under § 48.13, the child may be represented by counsel at the discretion of the court. A child age 15 or older may waive counsel if the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver. The court may not place the child outside his or her home unless the child is represented by counsel. For a child younger than age 12, the judge may appoint a guardian ad litem (GAL) instead of counsel.

The court shall appoint a GAL, or extend the appointment of a GAL previously appointed for any child alleged or found to be in need of protection or services, if the court has ordered, or if a request or recommendation has been made that the court order, the child to be placed out of his or her home.

The Use of Court-Appointed Special Advocates (CASAs)

In any proceeding under § 48.13 in which the court finds that providing the services of a court-appointed special advocate (CASA) would be in the best interests of the child, the court may request a CASA program to designate a person who meets the qualifications as a CASA to undertake the activities specified below.

A CASA does not become a party to the proceeding and, as a nonparty, may not make motions or call or cross-examine witnesses. A designation under this subsection terminates when the jurisdiction of the court over the child under § 48.13 terminates, unless the court discharges the CASA sooner.

Qualifications/Training

The GAL shall be an attorney admitted to practice in this State.

A CASA shall be a volunteer or employee of a CASA program who has been selected and trained as provided in the memorandum of understanding entered into under § 48.07(5)(a). No person who is a party in a proceeding, who appears as counsel or GAL in a proceeding on behalf of any party, or who is a relative or representative of a party in a proceeding may be designated as a CASA in that proceeding.

In court rules: Commencing on July 1, 1999, a lawyer may not accept an appointment by a court as a GAL for a minor in an action or proceeding under chapter 48 unless one of the following conditions has been met:

  • The lawyer has attended 30 hours of GAL education approved under SCR 35.03.
  • The lawyer has attended 6 hours of approved GAL education during the current reporting period at the time he or she accepts an appointment and the immediately preceding reporting period.
  • The appointing court has made a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which the lawyer is otherwise qualified by experience or expertise to represent the best interests of the minor.

The Board of Bar Examiners shall approve courses of instruction at a law school in this State and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a GAL for a minor or on the subject matter of proceedings under applicable statutes and that are designed to increase the attendees professional competence to act as GAL for a minor in those proceedings.

Specific Duties

The GAL shall be an advocate for the best interests of the child for whom the appointment is made. The GAL shall function independently and shall consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child. If the GAL determines that the best interests of the child are substantially inconsistent with the wishes of the child, the GAL shall so inform the court and the court may appoint counsel to represent the child.

The GAL shall do all of the following:

  • Meet with the child and, if the child is old enough to communicate, interview the child to determine the child’s goals and concerns regarding his or her placement
  • Assess the appropriateness and safety of the child’s environment
  • Make clear and specific recommendations to the court concerning the best interests of the child at every stage of the proceeding

In a case involving a child in need of protection or services, the GAL may do any of the following:

  • Participate in permanency planning
  • Petition for a change in placement
  • Petition for termination of parental rights or any other matter specified under § 48.14
  • Petition for revision or extension of dispositional orders
  • Petition for the appointment of a guardian, the revision of a guardianship order, or the removal of a guardian

A CASA may perform any of the following activities:

  • Gather information and make observations about the child and the child’s family and provide that information to the court in the form of written reports or, if requested by the court, oral testimony
  • Maintain regular contact with the child; monitor the appropriateness and safety of the environment of the child; the extent to which the child and his or her family are complying with any consent decree, dispositional order, or permanency plan; and the extent to which any agency is providing required services
  • Promote the best interests of the child
How the Representative Is Compensated

If a child has a right to be represented by counsel or is provided counsel at the discretion of the court and counsel is not knowingly and voluntarily waived, the court shall refer the child to the State public defender and counsel shall be appointed by the State public defender under § 977.08 without a determination of indigence.

A GAL shall be compensated at a rate that the court determines is reasonable, except that, if the court orders a county to pay the compensation of the GAL, the amount ordered may not exceed the compensation payable to a private attorney under § 977.08(4m)(b).

The court may order either or both of the parents of a child for whom a GAL is appointed to pay all or any part of the compensation of the GAL. In addition, upon motion by the GAL, the court may order either or both of the parents of the child to pay the fee for an expert witness used by the GAL, if the GAL shows that the use of the expert is necessary to assist the GAL in performing his or her functions or duties.

If one or both parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay because a parent is indigent, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A permanency plan is required for each child living in a foster home, group home, residential care center for children and youth, juvenile detention facility, shelter care facility, or supervised independent living arrangement.

A plan is required if any of the following conditions exists:

  • The child is being held in physical custody under §§ 48.207, 48.208, or 48.209.
  • The child is in the legal custody of the agency.
  • The child is under the supervision of an agency under § 48.64(2), under a consent decree under § 48.32(1)(b), or under a court order under § 48.355.
  • The child was placed under a voluntary agreement between the agency and the child’s parent under § 48.63(1)(a) or (5)(b).
  • The child is under the guardianship of the agency.
  • The child’s care would be paid for under § 49.19.
  • The child’s parent is placed in a foster home, group home, residential care center for children and youth, juvenile detention facility, shelter care facility, or supervised independent living arrangement, and the child is residing with that parent.

The agency shall file the permanency plan with the court within 60 days after the date on which the child was first removed from his or her home, except that if the child is held for less than 60 days in a juvenile detention facility, juvenile portion of a county jail, or a shelter care facility, no permanency plan is required if the child is returned to his or her home within that period.

Who May Participate in the Case Planning Process

The agency that placed the child or arranged the placement or the agency assigned primary responsibility for providing services to the child under § 48.355(2)(b)6g shall prepare a written permanency plan.

Contents of a Case Plan

The permanency plan shall include the following:

  • The date on which the child was removed from his or her home and was placed in out-of-home care
  • A description of the services offered and provided to prevent the removal of the child from home and to achieve the goal of the permanency plan
  • The basis for the decision to place the child outside of his or her home
  • A statement as to the availability of a safe and appropriate placement with a fit and willing relative of the child or why such placement is not safe or appropriate
  • If the child has one or more siblings who also have been removed from home, a description of the efforts made to place the siblings in a joint placement and, if a decision is made not to place the siblings in a joint placement, a statement as to why a joint placement would be contrary to the safety or well-being of the child or any of those siblings and a description of the efforts made to provide for frequent visitation or other ongoing interaction between the child and those siblings
  • The location and type of facility in which the child is currently placed or will be placed
  • If the child is living more than 60 miles from home, documentation that placement within 60 miles of the child’s home is either unavailable or inappropriate or that placement more than 60 miles away is in the child’s best interests
  • Information about the child’s education, including:
    • The name and address of the child’s current school
    • Any special education programs in which the child is or was previously enrolled
    • The child’s grade level and grade-level performance
    • A summary of all available education records
  • If the child must change schools as a result of the placement, documentation that a placement that would maintain the child in that school is either unavailable or inappropriate or that a transfer to another school would be in the child’s best interests
  • Medical information relating to the child, including the child’s immunization record, medications, and any known allergies
  • A description of the services that will be provided to the child, the child’s family, foster parent, or relative caregiver, including services planned to accomplish all of the following:
    • Ensure proper care and treatment of the child and promote safety and stability in the placement
    • Meet the child’s physical, emotional, social, educational, and vocational needs
    • Improve the conditions of the parents’ home to facilitate the safe return of the child
  • The goal of the permanency plan
  • If the goal of the permanency plan is to place the child for adoption, with a guardian, with a fit and willing relative, or in some other alternative permanent placement, the efforts made to achieve that goal
  • The conditions, if any, upon which the child will be returned safely home, including any changes required in the parents’ conduct, the child’s conduct, or the nature of the home
  • If the child is age 15 or older, an independent living plan describing the programs and services that are or will be provided to assist the child in preparing for the transition to independent living
  • If the child is an Indian child who is placed outside the home of his or her parent or Indian custodian, all of the following:
    • The name, address, and telephone number of the Indian child’s Indian custodian and Tribe
    • A description of the remedial services and rehabilitation programs offered in an effort to prevent the breakup of the Indian child’s family
    • A statement as to whether the Indian child’s placement is in compliance with the order of placement preference under § 48.028 and, if the placement is not in compliance with that order, a statement as to whether there is good cause for departing from that order

 

Concurrent Planning for Permanency for Children

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Current Through November 2012

A county department, the Department of Health and Family Services in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to a child under a court order shall determine, in accordance with standards established by the department, whether to engage in concurrent planning. If, according to those standards, concurrent planning is required, the county department, department, or agency shall engage in concurrent planning unless the court or permanency review panel determines under § 48.38(5)(c)5m that concurrent planning is inappropriate.

In this subsection, ‘concurrent planning’ means appropriate efforts to work simultaneously towards achieving more than one of the permanency goals listed in § 48.38(4)(fg), 1 to 5, for a child who is placed in out-of-home care and for whom a permanency plan is required.

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court or a review panel shall review the permanency plan no later than 6 months after the child’s removal from home and every 6 months thereafter as long as the child remains placed outside the home.

The court shall hold a permanency hearing no later than 12 months after the child’s removal from home and every 12 months thereafter.

If the court finds that reasonable efforts to reunify the child with his or her parent are not required, the court shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the child.

Persons Entitled to Attend Hearings

Notice shall be provided to:

  • The child if he or she is age 12 or older
  • The child’s parent, guardian, and legal custodian
  • The foster parent, the operator of the facility, or the relative with whom the child is living
  • If the child is an Indian child, the child’s Indian custodian and Tribe
  • The person representing the interests of the public
  • The child’s counsel, guardian ad litem, and court-appointed special advocate

A child, parent, guardian, custodian, foster parent, operator of a facility, or relative who is provided notice shall have a right to be heard at the review by submitting written comments no less than 10 working days before the date of the review or by participating at the review. A person representing the interests of the public, and the child’s counsel, guardian ad litem, or court-appointed special advocate may have an opportunity to be heard at the review by submitting written comments no less than 10 days before the review. A foster parent, operator of a facility, or relative who receives notice and a right to be heard does not become a party to the proceeding solely on the basis of receiving that notice.

If the child’s age and developmental level are sufficient for the court to consult with the child regarding the child’s permanency plan, the court shall consult with the child, in an age-appropriate and developmentally appropriate manner, regarding the child’s permanency plan and any other matters the court finds appropriate. If consulting with the child is not possible or appropriate, the court may permit the child’s caseworker, counsel, or guardian ad litem to make a statement during the review expressing the child’s wishes, goals, and concerns. If the court permits a statement to be made, the court may nonetheless require the child to be physically present at the review.

Determinations Made at Hearings

At the review hearing, the court or panel shall determine:

  • The continuing necessity and the safety and appropriateness of the placement
  • The extent of compliance with the permanency plan by the agency and any other service providers, the child’s parents, the child, and the child’s guardian, if any
  • The extent of efforts to meet the needs of the child and his or her parents
  • Progress toward eliminating the causes for the child’s placement outside of the home and toward returning the child safely home or obtaining a permanent placement for the child
  • Whether reasonable efforts were made by the agency to achieve the goal of the permanency plan
  • The appropriateness of the permanency goal
  • The appropriateness of the permanency plan and the circumstances that prevent the child from achieving the permanency goal
  • The date by which it is likely that the child will be returned home or placed for adoption, with a guardian, or in an alternative permanent placement
  • If the child has one or more siblings who have also been removed from the home, whether reasonable efforts were made by the agency to place the child in a placement that enables the sibling group to remain together or to provide for frequent visitation or other ongoing interaction between the child and those siblings
  • If the child is an Indian child who is placed outside the home of his or her parent or Indian custodian, whether active efforts were made to prevent the breakup of the Indian child’s family, whether those efforts have proved unsuccessful, whether the Indian child’s placement is in compliance with the placement preferences required by § 48.028
  • If the child is subject to an order that terminates his or her placement, the appropriateness of the transition-to-independent-living plan developed under § 48.385
Permanency Options

The goal of the permanency plan shall be one of the following:

  • Return of the child to the child’s home
  • Placement of the child for adoption
  • Placement of the child with a guardian
  • Permanent placement of the child with a fit and willing relative.
  • Some other planned permanent living arrangement that includes an appropriate, enduring relationship with an adult, including sustaining care or long-term foster care, but not including Independent Living
  • If the child has reached age 18, transition to Independent Living

 

Determining the Best Interests of the Child

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Current Through March 2016

The best interests of the child shall be the prevailing factor considered by the court in determining the disposition of all proceedings under this subchapter. In considering the best interests of the child under this section, the court shall consider, but not be limited to, the following:

  • The likelihood of the child’s adoption after termination of the parent’s parental rights
  • The age and health of the child, both at the time of the disposition, and, if applicable, at the time the child was removed from the home
  • Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships
  • The wishes of the child
  • The duration of the separation of the parent from the child
  • Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination of the parent’s parental rights, taking into account the conditions of the child’s current placement, the likelihood of future placements, and the results of prior placements

 

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Grounds for termination of parental rights shall be one of the following:

  • The parent has abandoned the child.
  • The parent has relinquished custody of the child when the child was 72 hours old or younger.
  • The child has been in an out-of-home placement for 6 months or longer, and the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet those conditions within 9 months.
  • The child has been placed outside the home on three or more occasions, and the conditions that led to the child’s placement were caused by the parent.
  • The parent is presently, and for a cumulative period of at least 2 years within the past 5 years was, an inpatient at one or more hospitals on account of mental illness, developmental disability, or other similar incapacities; the condition is likely to continue indefinitely; and the child is not being provided with adequate care by a relative who has legal custody of the child.
  • The parent has been denied periods of physical placement or visitation by court order for at least 1 year.
  • The parent has exhibited a pattern of physically or sexually abusive behavior that is a substantial threat to the health of the child.
  • The parent has failed to assume significant responsibility for the daily supervision, education, protection, and care of the child.
  • The parent is also related, either by blood or adoption, to the child’s other parent in a degree of kinship closer than second cousin.
  • The parent has been convicted of homicide or solicitation to commit homicide, and the victim was the child’s other parent.
  • The parent was convicted of a sexual assault that resulted in the conception of the child.
  • The parent was convicted of a felony against a child.
  • The parent was convicted of trafficking of a child involving any child.
  • The parent has had a prior involuntary termination of parental rights to another child.
Circumstances That Are Exceptions to Termination of Parental Rights

Abandonment is not established as grounds for termination if the parent proves all of the following by a preponderance of the evidence:

  • The parent had good cause for having failed to visit with the child.
  • The parent had good cause for having failed to communicate with the child.
  • If the parent proves good cause, including good cause based on evidence that the child’s age or condition would have rendered any communication with the child meaningless, that one of the following occurred:
    • The parent communicated about the child with the person or persons who had physical custody of the child or with the agency responsible for the care of the child.
    • The parent had good cause for having failed to communicate about the child with the person or persons who had physical custody of the child or the agency responsible for the care of the child.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

 

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

‘Guardian’ means the person named by the court having the duty and authority of guardianship.

‘Legal custodian’ means a person, other than a parent or guardian, or an agency to whom legal custody of the child has been transferred by a court, but does not include a person who has only physical custody of the child.

‘Relative’ means a parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, first cousin, second cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named above, even if the marriage is terminated by death or divorce. For purposes of the Federal Indian Child Welfare Act, 25 USC 1901 to 1963, ‘relative’ includes an extended family member, as defined in § 48.028(2)(am), whether by blood, marriage, or adoption, including adoption under Tribal law or custom.

Purpose of Guardianship

The court may appoint a guardian of the person for a child if the court finds all of the following:

  • That the child has been adjudged to be in need of protection or services and been placed or continued in a placement outside of his or her home pursuant to court order
  • That the person nominated as the guardian of the child is a person with whom the child has been placed or in whose home placement of the child is recommended and that it is likely that the child will continue to be placed with that person for an extended period of time or until the child reaches age 18
  • That, if appointed, it is likely that the person would be willing and able to serve as the child’s guardian for an extended period of time or until the child reaches age 18
  • That it is not in the best interests of the child that a petition to terminate parental rights be filed
  • That the child’s parent or parents are neglecting, refusing, or unable to carry out the duties of a guardian
  • That the agency primarily responsible for providing services to the child has made reasonable efforts to make it possible for the child to return to his or her home, while assuring that the child’s health and safety are the paramount concerns, but that reunification of the child with his or her parent or parents is unlikely or contrary to the best interests of the child
A Guardian’s Rights and Responsibilities

Legal custody is a legal status created by the order of a court that confers the right and duty to protect, train, and discipline the child; and to provide food, shelter, legal services, education, and ordinary medical and dental care, subject to the rights, duties, and responsibilities of the guardian of the child and subject to any residual parental rights and responsibilities and the provisions of any court order.

Except as limited by an order of the court under § 48.977(5)(b) or 48.978(6)(b)2., a person appointed by the court to be the guardian of a child has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child’s general welfare, including, but not limited to:

  • The authority to consent to marriage; enlistment in the U.S. armed forces; major medical, psychiatric, and surgical treatment; and obtaining a motor vehicle operator’s license
  • The authority to represent the child in legal actions and make other decisions of substantial legal significance concerning the child, but not the authority to deny the child the assistance of counsel as required by this chapter
  • The right and duty of reasonable visitation of the child
  • The rights and responsibilities of legal custody, except when legal custody has been vested in another person or agency
Qualifying the Guardian

In determining the appropriateness of appointing a guardian under this section, the best interests of the child shall be the prevailing factor to be considered by the court. In making this decision, the court shall consider, but not be limited to, all of the following:

  • Whether the person would be a suitable guardian of the child
  • The willingness and ability of the person to serve as the child’s guardian for an extended period of time or until the child reaches age 18
  • The wishes of the child
  • If the child is an Indian child, whether the proposed guardian satisfies the order of placement preference under § 48.028(7)(b) or, if applicable, § 48.028(7)(c), unless the court finds good cause, as described in § 48.028(7)(e), for departing from that order

A strong attachment of the child to the person or a strong commitment of the person to caring permanently for the child does not, in itself, constitute good cause for departing from that order.

Procedures for Establishing Guardianship

A petition for the appointment of a guardian for a child may be filed by:

  • The child or the child’s guardian, legal custodian, or Indian custodian, or guardian ad litem
  • The child’s parent
  • The person with whom the child is placed, if the person is nominated as the guardian
  • The Department of Children and Families or a county department
  • The person representing the interests of the public under § 48.09

Notice of the hearing shall be served on:

  • The child if the child is age 12 or older
  • The child’s guardian and legal custodian
  • The child’s guardian ad litem and counsel
  • The child’s parent
  • The person with whom the child is placed if the person is nominated as the guardian of the child in the petition
  • The agency primarily responsible for providing services to the child
  • If the child is an Indian child, the Indian child’s Indian custodian, if any, and Tribe, if known

The court shall hold a fact-finding hearing on the petition at which any party may present evidence relevant to the issue of whether the conditions for appointing a guardian have been met. If the court, at the conclusion of the fact-finding hearing, finds by clear and convincing evidence that those conditions have been met, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested. If a party requests an adjournment, the court shall set a date for the dispositional hearing that allows reasonable time for the parties to prepare but is no more than 30 days after the fact-finding hearing.

Contents of a Guardianship Order

After receiving any evidence relating to the petition for guardianship, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:

  • A disposition dismissing the petition if the court determines that appointment of the person as the child’s guardian is not in the best interests of the child.
  • A disposition ordering that the person with whom the child has been placed or in whose home placement of the child is recommended be appointed as the child’s guardian or limited guardian, if the court determines that such an appointment is in the best interests of the child

In a full guardianship, a guardian shall have all of the duties and authority specified in § 48.023. In a limited guardianship, the court may order that the duties and authority of a guardian be limited as specified by the order of appointment. All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

Modification/Revocation of Guardianship

Any authorized person may request a revision in a guardianship order or the court may, on its own motion, propose a revision. The request or court proposal shall set forth in detail the nature of the proposed revision, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, and that the proposed revision would be in the best interests of the child. The court may order a revision if, at a hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and that a revision would be in the best interests of the child.

Unless the court order specifies that a guardianship be for a lesser period of time, a guardianship shall continue until the child reaches age 18 or until terminated by the court, whichever occurs earlier.

Any person authorized to petition for guardianship may request that a guardian be removed for cause or the court may, on its own motion, propose such a removal. The request or court proposal shall allege facts sufficient to show that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian’s trust and may allege facts relating to any other information that affects the advisability of the court’s disposition.

A guardian may resign at any time if the resignation is accepted by the court.

A parent of the child may request that a guardianship order be terminated. The request shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is willing and able to carry out the duties of a guardian, and that the proposed termination of guardianship would be in the best interests of the child.

Eligibility for Guardianship Subsidy

The department shall provide monthly subsidized guardianship payments to a guardian of a child if the conditions specified below have been met. The department also shall provide those payments for the care of a sibling of the child, regardless of whether the sibling meets the specified conditions if the department and the guardian agree on the appropriateness of placing the sibling in the home of the guardian.

To be eligible for a subsidized guardianship, the child must meet all of the following conditions:

  • The child has been removed from his or her home under a voluntary agreement or under a substantially similar Tribal law or under a court order finding that continued placement of the child in his or her home would be contrary to the welfare of the child.
  • The child has been residing in the home of the guardian for no less than 6 consecutive months.
  • The child’s situation precludes returning the child to his or her home or adoption as appropriate permanency options for the child.
  • The child demonstrates a strong attachment to the guardian.
  • If the child is age 14 or older, the child has been consulted with regarding the guardianship arrangement.

The guardian must meet all of the following conditions:

  • The guardian is a relative of the child or is a person who has a significant emotional relationship with the child and who, prior to the child’s placement in out-of-home care, had an existing relationship with the child that is similar to a familial relationship.
  • The guardian has a strong commitment to caring permanently for the child.
  • The guardian is licensed as the child’s foster parent, and the guardian and all adults residing in the guardian’s home meet the requirements specified in § 48.685.
  • Prior to being named as the guardian of the child, the guardian entered into a subsidized guardianship agreement with the county department or department.
Links to Agency Policies

Wisconsin Administrative Code, Chapter DCF 58, Eligibility for the Kinship Care and Long-Term Kinship Care Program

Wisconsin Department of Children and Families, Subsidized Guardianship

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

The terms ‘kinship care relative’ and ‘long-term kinship care relative’ mean a relative other than a parent.

The Department of Children and Families shall make payments in the amount of $226 per month beginning on January 1, 2014, and $232 per month beginning on January 1, 2015, to a kinship care relative who is providing care and maintenance for a child. The department shall make monthly payments for each child in the amount of $220 per month to a long-term kinship care relative.

Requirements for Placement with Relatives

To receive a kinship care payment, all of the following conditions must be met:

  • The relative applies to the department for payments and a license to operate a foster home.
  • The department determines that there is a need for the child to be placed with the relative and that the placement is in the best interests of the child.
  • The department conducts a background investigation of the kinship care relative, any employee and prospective employee of the relative who has regular contact with the child, and any other adult resident of the home to determine if the kinship care relative, employee, prospective employee, or adult resident has any arrests or convictions that could adversely affect the child or the relative’s ability to care for the child.
  • The relative cooperates with the department in the application process, including applying for other forms of assistance for which the child may be eligible.

A long-term kinship care relative must meet the conditions listed above and provide proof that he or she has been appointed as the guardian of the child. In addition, the relative will enter into a written agreement to provide care and maintenance for the child until the earliest of the following dates:

  • The child reaches age 18, the date on which the child is granted a high school or high school equivalency diploma if on that date the child is a full-time student in good academic standing at a secondary school or its vocational or technical equivalent and is reasonably expected to complete his or her program of study and be granted a high school or high school equivalency diploma, or the child reaches age 19, whichever occurs first.
  • The child dies.
  • The child is placed outside the long-term kinship care relative’s home under a court order or voluntary agreement.
  • The child ceases to reside with the relative.
  • The long-term kinship care guardianship terminates.
  • The child moves out of the State.
Requirements for Placement of Siblings

If the child has one or more siblings who have been removed from the home or for whom an out-of-home placement is recommended, the department must provide the court with specific information showing that the department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the department recommends that the child and his or her siblings not be placed in a joint placement. In such a case, the report shall include specific information showing that a joint placement would be contrary to the safety or well-being of the child or any of those siblings.

If a recommendation is made that the child and his or her siblings not be placed in a joint placement, the report must include specific information showing that the department has made reasonable efforts to provide for frequent visits or other ongoing interaction between the child and the siblings, unless the department recommends that such visits or interaction not be provided. In such a case, the report shall include specific information showing that such visits or interaction would be contrary to the safety or well-being of the child or any of those siblings.

Relatives Who May Adopt

The term ‘relative’ means a parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, brother-in-law, sister-in-law, first cousin, second cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of ‘grand,’ ‘great,’ or ‘great-great,’ whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce. For purposes of the application of § 48.028 and the Federal Indian Child Welfare Act, 25 U.S.C §§1901 to 1963, ‘relative’ includes an extended family member, whether by blood, marriage, or adoption, including adoption under Tribal law or custom.

The term ‘extended family member’ means a person who is defined as a member of an Indian child’s extended family by the law or custom of the Indian child’s Tribe or, in the absence of such a law or custom, a person who is age 18 or older and who is the Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, second cousin, or stepparent.

Requirements for Adoption by Relatives

Before placing a child for adoption, the department or child welfare agency making the placement shall consider the availability of a placement for adoption with a relative of the child who is identified in the child’s permanency plan or who is otherwise known by the department or agency.

If a child who is being placed for adoption has one or more siblings who have been adopted or who have been placed for adoption, the department or agency making the placement shall make reasonable efforts to place the child for adoption with an adoptive parent of that sibling who is identified in the child’s permanency plan under § 48.38 or 938.38 or who is otherwise known by the department or agency, unless the department or agency determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings. In such case, the department or agency shall make reasonable efforts to provide for frequent visits or other ongoing interaction between the child and the siblings, unless the department or agency determines that such visits or interaction would be contrary to the safety or well-being of the child or any of those siblings.

A parent may place a child in the home of a relative for adoption without a court order.

If the child’s parent has not filed a petition for the termination of parental rights, the relative with whom the child is placed shall file a petition for the termination of the parent’s rights at the same time the petition for adoption is filed. The court may hold the hearing on the adoption petition immediately after entering the order to terminate parental rights.

 

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

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

Current Through March 2016

What Are Reasonable Efforts

Reasonable efforts shall include, but not be limited to:

  • A comprehensive assessment of the family’s situation
  • Financial assistance to the family, if applicable
  • Provision of services, including in-home support and intensive treatment services, community support services, or specialized services for family members with special needs
When Reasonable Efforts Are Required

Reasonable efforts must be made:

  • To prevent the removal of the child from the home
  • To return the child safely to the child’s home
  • To achieve the goal of the child’s permanency plan
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if the court finds any of the following:

  • The parent has subjected the child to aggravated circumstances, including abandonment, torture, chronic abuse, and sexual abuse.
  • The parent has committed, has aided or abetted the commission of, or has solicited, conspired, or attempted to commit, intentional homicide, reckless homicide, or felony murder, and the victim is a child of the parent.
  • The parent has committed battery, sexual assault, sexual assault of a child, or physical child abuse that resulted in great or substantial bodily harm to the child or another child of the parent.
  • The parental rights of the parent to another child have been involuntarily terminated.
  • The parent has relinquished custody of the child when the child was 72 hours old or younger.

 

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

A parent who is at significant risk of incapacity, debilitation, or death within 2 years may petition the court to appoint a standby guardian.

How to Establish a Standby Guardian

A proceeding for the appointment of a standby guardian shall be initiated by a petition that shall include:

  • The name, birth date, and address of the child
  • The names and addresses of the child’s parent or parents, guardian, and legal custodian
  • The name and address of the person nominated as standby guardian
  • The proposed triggering event
  • A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that statement

Notice of the hearing must be served on the child if the child is age 12 or older, and the child’s guardian, guardian ad litem, counsel, and other parent, if that parent has not joined in the petition and if that parent can with reasonable diligence be located. At the hearing, the court may approve the appointment of the standby guardian if it is found to be in the best interests of the child.

A parent may also designate a standby guardian for his or her child by means of a written designation signed by the parent in the presence of two witnesses who are age 18 or older, neither of which may be the standby guardian, and by the standby guardian. An optional form is provided in the statute.

How Standby Authority is Activated

The authority of the standby guardian will commence upon the parent’s death, incapacity, debilitation with consent, or written consent. The attending physician must document incapacity or debilitation.

If the guardianship has prior court approval, the standby guardian has 90 days from the triggering event to file confirming documents. If the guardianship is by written designation only, the standby guardian has 180 days from the triggering event to file confirming documents and petition for appointment.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 48.978
The other parent must join in the petition unless he or she refuses, cannot be located, or indicates an unwillingness to assume responsibility for the child. Reasonable diligence is required to locate the parent and serve notice.

Authority Relationship of the Parent and the Standby

The commencement of a guardianship does not divest the parent of any parental rights. The authority of the standby guardian is suspended upon a determination of the parent’s recovery or remission.

Withdrawing Guardianship

If at any time before the guardianship begins the court finds that the determination of the court no longer applies, the court may rescind the guardianship order.

A person who is appointed as a standby guardian may, at any time before the guardianship begins, renounce that appointment by executing a written renunciation, filing the renunciation with the court, and notifying the petitioner in writing.

The petitioner may revoke a standby guardianship at any time before the guardianship begins by executing a written revocation, filing the revocation with the court, and notifying the standby guardian in writing.

The petitioner may revoke a standby guardianship at any time after the guardianship has commenced by executing a written revocation, filing the written revocation with the court, and notifying the standby guardian in writing of the revocation. The court may rescind the guardianship order if the court determines that rescission is in the best interests of the child.

A parent who has made a written designation may, at any time before the filing of a petition, revoke it by executing a written revocation and notifying the standby guardian in writing, making a subsequent written designation, or verbally revoking the standby guardianship in the presence of two witnesses.

After a petition for confirmation of a written designation has been filed, but before the standby guardian has been judicially appointed, a parent who has created a standby guardianship by written designation may revoke it by filing a revocation with the court and notifying the standby guardian in writing of the revocation. The court may dismiss the petition and rescind the guardianship if the court determines that rescission is in the best interests of the child.

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

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

 

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

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

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

13.  

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

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

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

1st Circuit

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US Supreme Court

CPS Statutes

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

 

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

CPS Statutes

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

 

 

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

26.  .    

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

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

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

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

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

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

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

 

4th Circuit

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7th Circuit

8th Circuit

9th Circuit

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11th Circuit

US Supreme Court

CPS Statutes

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

 

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

1st Circuit

2nd Circuit

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

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

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US Supreme Court

CPS Statutes

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

Put CPS rules of exigent circumstances here

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

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

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

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

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

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

CPS Statutes

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

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

1st Circuit

2nd Circuit

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

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

1st Circuit

2nd Circuit

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4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

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

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

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

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

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7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

6th Circuit

7th Circuit

8th Circuit

9th Circuit

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

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

1st Circuit

2nd Circuit

3rd Circuit

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

4th Circuit

5th Circuit

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

6th Circuit

7th Circuit

8th Circuit

9th Circuit

10th Circuit

11th Circuit

US Supreme Court

CPS Statutes

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

 

 

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