Motion To Dismiss – CPS – Indiana

How to write a Motion To Dismiss for DCS / CPS Juvenile Court In Indiana

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

 

Indiana Child Welfare Policy Manual

Links to State and Tribal Child Welfare Law and Policy

To better understand this issue and to view it across States, download the PDF (223 KB) of this publication.

Current Through March 2015

Statutes

http://www.in.gov/legislative/ic/code/

  • Adoption: Title 31, Article 19
  • Child Protection: Title 31, Article 33
  • Child Welfare: Title 31, Articles 28, 34, 35
  • Guardianship: Title 29, Article 3, Chapters 1, 8; Title 31, Article 34, Chapter 21
  • Youth Services: Title 31, Article 28, Chapter 5.8; Title 31, Article 34, Chapter 21
Regulation/Policy

http://www.in.gov/legislative/iac/iac_title?iact=465

See Article 2, Child Welfare Services:

  • For Assisted Guardianship Program, see Rule 8
  • For Independent Living Services and older foster youth care, see Rules 14 and 15

http://www.in.gov/dcs/2354.htm

Other Resources

Indiana Rules of Court

Child Witnesses to Domestic Violence

To better understand this issue and to view it across States, download the PDF (426 KB) of this publication.

Current Through April 2016

Circumstances That Constitute Witnessing

In civil law: This section applies if a court finds that a noncustodial parent has been convicted of a crime involving domestic or family violence that was witnessed or heard by the noncustodial parent’s child.

Consequences

When a noncustodial parent has been convicted of domestic violence that was witnessed by the noncustodial parent’s child, his or her parenting time with the child must be supervised for at least 1 year and no more than 2 years immediately following the crime involving domestic or family violence or until the child becomes emancipated, whichever occurs first.

As a condition of granting the noncustodial parent unsupervised parenting time, the court may require the noncustodial parent to complete a batterer’s intervention program certified by the Indiana Coalition Against Domestic Violence.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

A child is a ‘child in need of services’ if, before the child becomes age 18, the child’s physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian.

Evidence that the illegal manufacture of a drug or controlled substance is occurring on property where a child resides creates a rebuttable presumption that the child’s physical or mental health is seriously endangered.

Neglect

A child is a ‘child in need of services’ if, before the child becomes age 18:

  • The child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision.
  • The child is born with fetal alcohol syndrome or any amount, including a trace amount, of a controlled substance or a legend drug in the child’s body.
  • The child has an injury, abnormal physical or psychological development, or is at a substantial risk of a life-threatening condition that arises or is substantially aggravated because the child’s mother used alcohol, a controlled substance, or a legend drug during pregnancy.

The term ‘child in need of services’ includes a child with a disability who is deprived of nutrition that is necessary to sustain life, or is deprived of medical or surgical intervention that is necessary to remedy or ameliorate a life-threatening medical condition if the nutritional, medical, or surgical intervention is generally provided to similarly situated children with or without disabilities.

Sexual Abuse/Exploitation

A child is a ‘child in need of services’ if, before the child becomes age 18, the child is the victim of an offense, as defined in the criminal statutes, pertaining to:

  • Rape
  • Criminal deviate conduct (before its repeal)
  • Child molesting
  • Child exploitation or possession of child pornography
  • Child seduction
  • Sexual misconduct with a minor
  • Indecent exposure
  • Prostitution
  • Incest

A child is a ‘child in need of services’ if, before the child becomes age 18, the child’s parent, guardian, or custodian allows the child:

  • To participate in an obscene performance
  • To commit a sex offense prohibited by criminal statute

A child is a child in need of services if, before the child becomes age 18, the child is the victim of:

  • Human or sexual trafficking (as defined in § 31-9-2-133.1)
  • A human or sexual trafficking offense under the law of another jurisdiction, including Federal law, that is substantially equivalent

A child is considered a victim of human or sexual trafficking regardless of whether the child consented to the conduct described above.

The term ‘victim of human or sexual trafficking’ refers to a child who is recruited, harbored, transported, or engaged in:

  • Forced labor
  • Involuntary servitude
  • Prostitution
  • Child exploitation, as defined in § 35-42-4-4(b)
  • Marriage, unless authorized by a court under § 31-11-1-6
  • Trafficking for the purpose of prostitution or participation in sexual conduct, as defined in § 35-42-4-4(a)(4)
Emotional Abuse

A child is a ‘child in need of services’ if the child’s mental health is seriously endangered by an act or omission of the child’s parent, guardian, or custodian.

Abandonment

Citation: Ann. Code § 31-9-2-0.5
‘Abandoned infant’ means:

  • A child who is younger than 12 months old and whose parent, guardian, or custodian has knowingly or intentionally left the child in an environment that endangers the child’s life or health or in a hospital or medical facility and has no reasonable plan to assume the care, custody, and control of the child
  • A child who is or appears to be no more than 30 days old and whose parent has knowingly and intentionally left the child with an emergency medical services provider and did not express an intent to return for the child
Standards for Reporting

Citation: Ann. Code § 31-33-5-1
A report is required when an individual has reason to believe that a child is a victim of child abuse or neglect.

Persons Responsible for the Child

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

Exceptions

A child is not a ‘child in need of services’ if:

  • The presence of a controlled substance was a result of a valid medical prescription.
  • A parent fails to provide specific medical treatment for a child because of legitimate and genuine religious beliefs. This presumption does not do any of the following:
    • Prevent a court from ordering medical services when the health of the child requires it
    • Apply to situations in which the child’s life or health is in serious danger

This chapter does not limit:

  • The right of the parent to use reasonable corporal punishment to discipline the child
  • The lawful practice or teaching of religious beliefs

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Crime involving domestic or family violence’ means a crime that occurs when a family or household member commits, attempts to commit, or conspires to commit any of the following against another family or household member:

  • A homicide offense
  • A battery offense
  • Kidnapping or confinement
  • A sex offense
  • Robbery
  • Arson or mischief
  • Burglary or trespass
  • Disorderly conduct
  • Intimidation or harassment
  • Voyeurism
  • Stalking
  • An offense against the family under §§ 35-46-1-2 through 35-46-1-8, 35-46-1-12, or 35-46-1-15.1
  • Human and sexual trafficking crimes
  • A crime involving animal cruelty and a family or household member

‘Domestic or family violence’ means, except for an act of self-defense, the occurrence of one or more of the following acts committed by a family or household member:

  • Attempting to cause, threatening to cause, or causing physical harm to another family or household member without legal justification
  • Placing a family or household member in fear of physical harm without legal justification
  • Causing a family or household member to involuntarily engage in sexual activity by force, threat of force, or duress
  • Beating, torturing, mutilating, or killing an animal without justification with the intent to threaten, intimidate, coerce, harass, or terrorize a family or household member
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Crime of domestic violence’ means an offense or the attempt to commit an offense that:

  • Includes the use of physical force or threatened use of a deadly weapon
  • Is committed against a:
    • Current or former spouse, parent, or guardian of the defendant
    • Person with whom the defendant has a child in common
    • Person who was cohabiting with or had cohabited with the defendant as a spouse, parent, or guardian
    • Person who was or had been similarly situated to a spouse, parent, or guardian of the defendant
Persons Included in the Definition

In civil law: An individual is a ‘family or household member’ of another person if the individual:

  • Is a current or former spouse of the other person
  • Is dating or has dated the other person
  • Is engaged or was engaged in a sexual relationship with the other person
  • Is related by blood or adoption to the other person
  • Is or was related by marriage to the other person
  • Has or previously had an established legal relationship:
    • As a guardian of the other person
    • As a ward of the other person
    • As a custodian of the other person
    • As a foster parent of the other person
    • In a capacity with respect to the other person similar to those listed above
  • Has a child in common with the other person

An individual is a ‘family or household member’ of both persons listed above if the individual is a minor child of one of the persons.

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 reason to believe that a child is a victim of abuse or neglect shall immediately make an oral report to the Department of Child Services or a local law enforcement agency.

Content of Reports

The department shall make a written report of a child who may be a victim of child abuse or neglect no later than 48 hours after receipt of the oral report.

Written reports must be made on forms supplied by the administrator. The written reports must include, if known, the following information:

  • The names and addresses of the child and the child’s parents, guardian, custodian, or other person responsible for the child’s care
  • The child’s age and sex
  • The nature and apparent extent of the child’s injuries, abuse, or neglect, including any evidence of prior injuries of the child or abuse or neglect of the child or the child’s siblings
  • The name of the person allegedly responsible for causing the injury, abuse, or neglect
  • The source of the report
  • The name of the person making the report and where the person can be reached
  • The actions taken by the reporting source, including the following:
    • Taking of photographs and x-rays
    • Removing or keeping of the child
    • Notifying the coroner
  • The written documentation required by § 31-34-2-3 if a child was taken into custody without a court order
  • Any other information that the director requires by rule or the person making the report believes might be helpful
Reporting Suspicious Deaths

A copy of the written report of the local child protection service shall immediately be made available to the coroner for the coroner’s consideration in a case involving death. Upon receiving a written report, the coroner shall accept the report for investigation and report the findings to:

  • The appropriate law enforcement agency
  • The prosecuting attorney
  • The department
  • The hospital, if the institution making the report is a hospital
Reporting Substance-Exposed Infants

This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

The department shall arrange for receipt, on a 24-hour, 7-day per week basis, of all reports of suspected child abuse or neglect.

Initial Screening Decisions

This issue is not addressed in the statutes reviewed.

Agency Conducting the Assessment/Investigation

Upon the receipt of a report of known or suspected child abuse, the department shall contact the law enforcement agency in the appropriate jurisdiction.

The law enforcement agency, with the department, shall conduct an immediate onsite investigation of the report if the law enforcement agency has reason to believe that an offense has been committed. The law enforcement agency shall investigate the alleged child abuse or neglect in the same manner that the law enforcement agency conducts any other criminal investigation.

The department shall promptly make a thorough assessment upon either the oral or written report. The primary purpose of the assessment is the protection of the child.

If a report alleges abuse or neglect and involves a child care ministry that is exempt from licensure, the department and the appropriate law enforcement agency shall jointly conduct an investigation. The investigation shall be conducted under the requirements of §§ 31-33-8-1 and 31-33-8-2(b).

Assessment/Investigation Procedures

The department’s assessment, to the extent that is reasonably possible, must include the following:

  • The nature, extent, and cause of the known or suspected child abuse or neglect
  • The identity of the person allegedly responsible for the child abuse or neglect
  • The names and conditions of other children in the home
  • An evaluation of the parent, guardian, custodian, or person responsible for the care of the child
  • An evaluation of the home environment and the relationship of the child to the parent, guardian, custodian, or other persons responsible for the child’s care
  • All other data considered pertinent

The assessment may include the following:

  • A visit to the child’s home
  • An interview with the child
  • A physical, psychological, or psychiatric examination of any child in the home
Timeframes for Completing Investigations

The department shall initiate an immediate and appropriately thorough child protection investigation of every report of known or suspected child abuse or neglect the department receives. Investigation timeframes are as follows:

  • If the report alleges a child may be a victim of child abuse, the investigation shall be initiated immediately, but no later than 24 hours after receipt of the report.
  • If reports of child neglect are received, the investigation shall be initiated within a reasonably prompt time, but no later than 5 days, with the primary consideration being the well-being of the child who is the subject of the report.
  • If the immediate safety or well-being of a child appears to be endangered or the facts otherwise warrant, the investigation shall be initiated regardless of the time of day.
  • If the department has reason to believe that the child is in imminent danger of serious bodily harm, the department shall initiate an immediate, onsite investigation within 1 hour.
  • If the report alleges that a child lives with a parent, guardian, or custodian who is married to or lives with a person who has been convicted of neglect of a dependent or a battery offense or is required to register as a sex or violent offender, the department shall initiate an assessment within a reasonably prompt time, but no later than 5 days after the receipt of the report.
Classification of Reports

Upon completion of an investigation, the department shall classify reports as substantiated or unsubstantiated.

Parental Drug Use as Child Abuse

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Current Through April 2015

A person who recklessly, knowingly, or intentionally takes a person younger than age 18 or an endangered adult (as defined in § 12-10-3-2) into a building, structure, vehicle, or other place that is being used by any person to unlawfully possess drugs or controlled substances or unlawfully manufacture, keep, offer for sale, sell, deliver, or finance the delivery of drugs or controlled substances, commits a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this section.

A child is a ‘child in need of services’ if before the child becomes age 18:

  • The child’s physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian.
  • The child needs care, treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court.

Evidence that the illegal manufacture of a drug or controlled substance is occurring on property where a child resides creates a rebuttable presumption that the child’s physical or mental health is seriously endangered.

Except as provided in statute, a child is a ‘child in need of services’ if:

  • The child is born with fetal alcohol syndrome or any amount, including a trace amount, of a controlled substance or a legend drug in the child’s body.
  • The child has an injury, has abnormal physical or psychological development, or is at a substantial risk of a life-threatening condition that arises or is substantially aggravated because the child’s mother used alcohol, a controlled substance, or a legend drug during pregnancy.
  • The child needs care, treatment, or rehabilitation that the child is not receiving or is unlikely to be provided or accepted without the coercive intervention of the court.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

The juvenile court may appoint a guardian ad litem (GAL) or court-appointed special advocate (CASA), or both, for the child at any time.

The juvenile court may appoint an early intervention advocate for a child who is participating in a preventative program for at-risk children that has been established by the court. An ‘early intervention advocate’ is a volunteer or staff member of a preventative program who is appointed by the court as an officer of the court to assist, represent, and protect the interests of at-risk children.

A court may not appoint a party to the proceedings, an employee of a party to the proceedings, or a representative of a party to the proceedings as the GAL or CASA for a child involved in the proceedings.

A GAL or CASA need not be an attorney, but the attorney representing the child may be appointed the child’s GAL or CASA.

The GAL or CASA may be represented by an attorney.

Before complying with the other requirements of this chapter, the juvenile court shall first determine whether the following conditions make it appropriate to appoint a GAL or CASA, or both, for the child:

  • The child is alleged to be a child in need of services due to abuse, neglect, or abandonment.
  • The parent, guardian, or custodian of a child denies the allegations of a child in need of services petition.
The Use of Court-Appointed Special Advocates (CASAs)

A CASA is a community volunteer who:

  • Has completed a training program approved by the court
  • Has been appointed by a court to represent and protect the best interests of a child
  • May research, examine, advocate, facilitate, and monitor a child’s situation

A CASA is a community volunteer who has completed a training program approved by the court that includes training in the identification and treatment of child abuse and neglect and early childhood, child, and adolescent development.

Qualifications/Training

A GAL is an attorney, a volunteer, or an employee of a county program designated under § 33-24-6-4 who has completed training appropriate for the person’s role, including training in the identification and treatment of child abuse and neglect and early childhood, child, and adolescent development, as required by 42 U.S.C. 5106a(b)(2)(B)(xiii).

A GAL who is not an attorney must complete the same court-approved training program that is required for a CASA.

Specific Duties

A GAL is an attorney, a volunteer, or an employee of a county program who is appointed by a court to:

  • Represent and protect the best interests of a child
  • Provide the child with services requested by the court, including researching, examining, advocating, facilitating, and monitoring the child’s situation

A GAL or CASA shall represent and protect the best interests of the child. The GAL or CASA, or both, shall be considered officers of the court for the purpose of representing the child’s interests.

A GAL or CASA serves until the juvenile court enters an order for discharge.

How the Representative Is Compensated

A juvenile court may order the parent or guardian of the estate of any child for whom a GAL or CASA is appointed to pay to the Probation Department a user fee of not more than $100 for deposit in:

  • The GAL fund if a GAL has been appointed
  • The CASA fund if a CASA has been appointed

The fiscal body of the county shall appropriate money from the GAL fund or the CASA fund to the juvenile courts to provide GAL or CASA services and the costs of representation for the GALs or CASAs.

Money remaining in the GAL fund or CASA fund at the end of the county’s fiscal year does not revert to any other fund but continues in the GAL fund or CASA fund.

 

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

 

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

In accordance with Federal law, a case plan is required for each child in need of services who is under the supervision of the Department of Child Services as a result of an out-of-home placement or the issuance of a dispositional decree. The department shall complete a child’s case plan no later than 60 days after the date of the child’s first placement or the date of a dispositional decree, whichever comes first.

Who May Participate in the Case Planning Process

The department, after negotiating with the child’s parent, guardian, or custodian, shall complete the child’s case plan.

Contents of a Case Plan

The case plan must include a description and discussion of the following:

  • A permanent plan for the child and an estimated date for achieving the goal of the plan
  • The appropriate placement for the child based on the child’s special needs and best interests
  • The least restrictive familylike setting that is close to the home of the child’s parent, custodian, or guardian if out-of-home placement is recommended
  • Family services recommended for the child, parent, guardian, or custodian
  • Efforts already made to provide family services to the child, parent, guardian, or custodian
  • Efforts that will be made to provide family services that are ordered by the court
  • A plan for ensuring the educational stability of the child while in foster care that includes assurances that:
    • The placement of the child in foster care considers the appropriateness of the current educational setting of the child and the proximity to the school where the child is presently enrolled.
    • The department has coordinated with local educational agencies to ensure the child remains in the school where the child is enrolled at the time of removal unless immediate, appropriate enrollment of the child is needed in a different school, including arrangements for the transfer of the child’s school records to the new school, if remaining in the same school is not in the best interests of the child.

If an out-of-home placement is appropriate, the local office or department shall consider whether the child should be placed with the child’s suitable and willing blood or adoptive relative caregiver, including a grandparent, aunt, uncle, or adult sibling, before considering other out-of-home placements for the child.

Concurrent Planning for Permanency for Children

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Current Through November 2012

This issue is not addressed in the statutes reviewed.

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The case of each child in need of services under the supervision of the Department of Child Services must be reviewed at least once every 6 months, or more often, if ordered by the court. The first of these periodic case reviews must occur at least 6 months after the date of the child’s removal from the child’s home, or at least 6 months after the date of the dispositional decree, whichever comes first.

Each periodic case review must be conducted by the juvenile court in a formal court hearing. The court may perform a case review any time after a progress report has been filed.

The court shall hold a permanency hearing:

  • No later than 30 days after a court finds that reasonable efforts to reunify or preserve a child’s family are not required
  • Every 12 months after the date of the original dispositional decree or the date that the child in need of services was removed from the child’s parent, guardian, or custodian, whichever comes first
  • More often if ordered by the juvenile court
Persons Entitled to Attend Hearings

At least 7 days prior to a hearing, the department shall provide notice to each of the following:

  • The child’s parent, guardian, or custodian
  • An attorney who has entered an appearance on behalf of the child’s parent, guardian, or custodian
  • A prospective adoptive parent
  • The child’s foster parent
  • Any other person whom the department knows is currently providing care for the child
  • Any other suitable relative or person whom the department knows has had a significant or caregiving relationship to the child

The court shall provide to a person described above an opportunity to be heard and to make recommendations to the court. The right to be heard and to make recommendations includes:

  • The right to submit a written statement to the court that, if served upon all parties to the child in need of services proceeding and the persons described above, may be made a part of the court record
  • The right to present oral testimony to the court and cross-examine any of the witnesses at the hearing
Determinations Made at Hearings

At the review hearing the court shall determine:

  • Whether the child’s case plan, services, and placement meet the child’s special needs and best interests
  • Whether the department has made reasonable efforts to provide family services
  • A projected date for the child’s return home, adoption, emancipation, or placement with a legal guardian

At the permanency hearing the court shall:

  • Consider the question of continued jurisdiction and whether the dispositional decree should be modified
  • Consider the recommendations of persons listed above before approving a permanency plan
  • Consult with the child in an age-appropriate manner regarding the proposed permanency plan
  • Consider and approve a permanency plan for the child
  • Determine whether an existing permanency plan must be modified

If the child is at least age 16 and the proposed permanency plan provides for the transition of the child from foster care to independent living, the court shall:

  • Require the department to provide notice of the permanency hearing to the child
  • Provide to the child an opportunity to be heard and to make recommendations to the court
  • Require the department to document its unsuccessful efforts to return the child home or secure a placement for the child with a fit and willing relative, legal guardian, or adoptive parent, including efforts to find biological or adoptive family members for the child
  • Ask the child about his or her desired permanency outcome and document the child’s response
  • Determine why another planned permanent living arrangement is the best permanency plan for the child
  • Require the department to document the steps the department is taking to ensure that the child’s foster family home is following the reasonable and prudent parent standard in providing the child with regular, ongoing opportunities to engage in developmentally appropriate activities
Permanency Options

A permanency plan includes the intended permanent or long-term arrangements for care and custody of the child that may include any of the following arrangements that the department or the court considers most appropriate and consistent with the best interests of the child:

  • Return to or continuation of existing custodial care within the home of the child’s parent, guardian, or custodian or placement of the child with the child’s noncustodial parent
  • Initiation of a proceeding for termination of the parent-child relationship
  • Placement of the child for adoption
  • Placement of the child with a responsible person, including an adult sibling, a grandparent, an aunt, an uncle, a custodial parent of a sibling of the child, or another relative who is able and willing to act as the child’s permanent custodian and carry out the responsibilities required by the permanency plan
  • Appointment of a legal guardian
  • A supervised Independent Living arrangement or foster care for the child with a permanency plan of another planned, permanent living arrangement

A child younger than age 16 may not have another planned, permanent living arrangement as the child’s permanency plan.

Determining the Best Interests of the Child

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Current Through March 2016

If consistent with the safety of the community and the best interests of the child, the juvenile court shall enter a dispositional decree that:

  • Is in the least restrictive (most family-like) and most appropriate setting available
  • Is close to the parents’ home, consistent with the best interests and special needs of the child
  • Interferes least with family autonomy
  • Is least disruptive of family life
  • Imposes the least restraint on the freedom of the child and the child’s parent, guardian, or custodian
  • Provides a reasonable opportunity for participation by the child’s parent, guardian, or custodian

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

A court may find that reasonable efforts to reunify a child with his or her parent are not required when:

  • The parent has been convicted of any of the following offenses:
    • A sex offense, as described in § 31-35-3-4(1)(D) through (1)(J), against the child or a parent of the child
    • Murder or voluntary manslaughter of the child or a parent of the child
    • Aiding, inducing, causing another person, attempting, or conspiring with another person to commit murder or manslaughter
    • Felony battery, aggravated battery, criminal recklessness, or neglect of a dependent against a child
  • The parental rights of a parent with respect to a birth or adoptive sibling of the child have been involuntarily terminated.
  • The child is an abandoned infant.

A petition for termination of parental rights shall be filed if a court has made a finding under § 31-34-21-5.6 that reasonable efforts for family preservation or reunification with respect to a child in need of services are not required.

A petition also may be filed when a child in need of services or a delinquent child:

  • Has been placed in a foster family home, child-caring institution, licensed group home, or the home of a person related to the child
  • Has been removed from a parent and has been under the supervision of the Department of Child Services or county Probation Department for not less than 15 of the most recent 22 months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child.
Circumstances That Are Exceptions to Termination of Parental Rights

A petition to terminate parental rights may be dismissed if:

  • The current case plan has documented a compelling reason that termination of the parent-child relationship is not in the best interests of the child. A compelling reason may include the fact that the child is being cared for by a custodian who is a parent, stepparent, grandparent, or responsible adult who is the child’s sibling, aunt, uncle, or another related person who is caring for the child as a legal guardian.
  • The Department of Child Services has not provided family services to the child, parent, or family of the child in accordance with the case plan, and the period for completion of the program of family services has not expired.
  • The department has not provided family services to the child, parent, or family of the child in accordance with the case plan, and the services that the department has not provided are substantial and material in relation to implementation of a plan to permit safe return of the child to the child’s home.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

The relinquished child may not be more than 30 days old.

Who May Relinquish the Infant

The child may be relinquished by his or her parent or any person designated by the parent.

Who May Receive the Infant

The child may be left with an emergency medical services provider.

Responsibilities of the Safe Haven Provider

An emergency medical services provider shall, without a court order, take custody of a child who is, or who appears to be, not more than 45 days old if:

  • The child is voluntarily left with the provider by the child’s parent.
  • The parent does not express an intent to return for the child.

An emergency medical services provider who takes custody of a child under this section shall perform any act necessary to protect the child’s physical health or safety.

Immediately after an emergency medical services provider takes custody of a child, the provider shall notify the Department of Child Services that the provider has taken custody of the child. Not later than 48 hours after the department has taken custody of the child, it shall contact the Indiana Clearinghouse for Information on Missing Children and Missing Endangered Adults to determine if the child has been reported missing.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent

A person who voluntarily leaves a child with an emergency services provider is not required to disclose his or her name or the parent’s name.

If the accused person left a dependent child, who was not more than 30 days old at the time the alleged act occurred, with an emergency medical provider who took custody of the child, it is a defense to a prosecution for abandonment or neglect of a dependent when:

  • The prosecution is based solely on the alleged act of leaving the child with the emergency medical services provider.
  • The alleged act did not result in bodily injury or serious bodily injury to the child.
Effect on Parental Rights

The Department of Child Services shall assume the care, control, and custody of the child immediately after receiving notice from the emergency services provider.

A child for whom the Department of Child Services assumes care, control, and custody shall be treated as a child taken into custody without a court order, except that efforts to locate the child’s parents or reunify the child’s family are not necessary if, after receiving a written report and recommendation from the guardian ad litem or court-appointed special advocate, the court finds that reasonable efforts to locate the child’s parents or reunify the child’s family would not be in the best interests of the child.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means a person who is a fiduciary and is appointed by a court to be a guardian or conservator responsible as the court may direct for the person or the property of a minor. The term includes a temporary guardian, a limited guardian, and a successor guardian, but excludes one who is only a guardian ad litem. The terms ‘guardian’ and ‘conservator’ are interchangeable.

Purpose of Guardianship

The Department of Child Services will offer guardianship as a permanency option if it is in the best interests of the child and if other permanency goals (e.g., reunification, adoption, another planned permanent living arrangement, or placement with a fit and willing relative) are not feasible.

A Guardian’s Rights and Responsibilities

The legal guardian appointed under this section is a caregiver in a judicially created relationship between the child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of the following parental rights with respect to the child:

  • Care, custody, and control of the child
  • Decision-making concerning the child’s upbringing

The guardian of a child may exercise all of the powers required to perform the guardian’s responsibilities, including the following:

  • The power to take custody of the child and establish the child’s place of abode within or without Indiana
  • The power to consent to medical or other professional care and treatment for the child’s health and welfare
  • The power to consent to the marriage or adoption of the child
Qualifying the Guardian

The juvenile court may not approve a placement with a legal guardian if a person who is currently residing with the proposed legal guardian has committed an act resulting in a substantiated report of child abuse or neglect, has a juvenile adjudication for an act that would be a felony listed in § 31-27-4-13 if committed by an adult, or has a conviction for a felony listed in that section.

Before requesting juvenile court approval of a permanency plan, the department shall conduct a criminal history check to determine if a person living in the home proposed for the child’s placement has committed an act resulting in a substantiated report of child abuse or neglect or has committed a felony that would result in the person’s disqualification.

In regulation: The guardian must meet each of the following criteria, as shown by a home study and an evaluation of the guardian:

  • Have the ability to provide for the child’s physical, mental, emotional, educational, and psychological needs, upon termination of supervision of the child by the department, except for provision of assistance
  • Have the ability, willingness, and motivation to access and obtain appropriate services outside the home that are necessary or appropriate for the health, education, development, and well-being of the child and that will assist the child in becoming a self-supporting adult to the maximum extent feasible
  • Have established a nurturing, stable relationship with the child in which the child indicates a desire to continue a family relationship and residence with the guardian in the guardian’s household
  • Have demonstrated the ability to determine and regulate an appropriate level of relationship and ongoing contacts with any parent or other close relative of the child, consistent with the safety and best interests of the child, and in conformance with any plan of visitation ordered or approved by the court
Procedures for Establishing Guardianship

Any person may file a petition for the appointment of a person to serve as guardian for a child under this chapter. After the filing of a petition, the court shall set a date for a hearing on the issues raised by the petition. A court shall notify the department of a hearing regarding the guardianship of a child under this section, if a child in need of services petition has been filed regarding the child. The department may participate in a hearing regarding the guardianship of a child described in this subsection.

If the subject of the petition is a child, notice of the petition and the hearing on the petition shall be given to the following persons whose whereabouts can be determined upon reasonable inquiry:

  • The child if he or she is at least age 14, unless the child has signed the petition
  • Any living parent of the child, unless parental rights have been terminated by a court order
  • Any person alleged to have had the principal care and custody of the child during the 60 days preceding the filing of the petition
  • Any other person that the court directs
Contents of a Guardianship Order

The court may include in its order creating a guardianship of a child the following:

  • A requirement that the child must reside with the guardian until the guardianship is terminated or modified
  • Any terms and conditions that a parent must meet in order to seek modification or termination of the guardianship
Modification/Revocation of Guardianship

The court may modify or terminate the guardianship only if the parent complies with the terms and conditions and proves the parent’s current fitness to assume all parental obligations by a preponderance of the evidence.

If a petition is filed for modification, resignation, removal of the guardian, or termination of the guardianship before the parent complies with the court-ordered terms and conditions described above, and the child was the subject of a petition alleging the child to be a child in need of services, the court shall refer the petition to the Department of Child Services for the department to determine the placement of the child in accordance with the best interests of the child.

A court shall notify the department:

  • If the court appoints a guardian for a child who was the subject of a petition alleging the child to be a child in need of services, and if a petition to modify or terminate the guardianship of the child or a petition regarding the death, resignation, or removal of the guardian is filed
  • Of any hearings related to the petitions

If a child was the subject of a petition alleging the child to be a child in need of services, the court shall do the following at a hearing regarding a petition filed under this section:

  • Consider the position of the department
  • If requested by the department, allow the department to present evidence regarding:
    • Whether the guardianship should be modified or terminated
    • The fitness of the parent to provide for the care and supervision of the child at the time of the hearing
    • The appropriate care and placement of the child
    • The best interests of the child
Eligibility for Guardianship Subsidy

A child who meets all the following criteria shall be eligible for assistance:

  • The child is at least age 13, a member of a sibling group in which at least one of whom is at least age 13, seriously disabled, or approved for legal guardianship as a permanency plan by order of a court.
  • The child must be residing in the household of an adult relative caregiver.
  • The gross family income attributable to the child must be less than 250 percent of the Federal poverty level.
  • The child must have been adjudicated as a child in need of services by a juvenile court.
  • The child must have been removed from the child’s home and placed in another home or shelter care facility, under supervision of a county office, pursuant to a dispositional decree.
  • The child must be residing with a guardian who meets the eligibility requirements specified below.
  • The child must have resided with the guardian in the guardian’s home for a continuous period of at least 6 months.
  • The permanency plan for the child is appointment of a legal guardian for the child.

A guardian who meets all the following criteria shall be eligible to receive assistance on behalf of a child who is eligible for assistance:

  • The guardian must be a relative of the child.
  • The guardian must reside in a home that meets all requirements for licensing as a foster family home.
  • The eligible child must currently reside with the guardian in his or her home.
  • The child must have resided in the guardian’s home for a continuous period of at least 6 months.
  • The guardian must be primarily responsible for providing for appropriate care, support, maintenance, education, and welfare of the child.
Links to Agency Policies

Indiana Department of Child Services, Child Welfare Manual, Chapter 14, § 6, Guardianship (PDF – 134 KB)

 

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

Within 30 days after the removal of the child from the parents, the Department of Child Services shall exercise due diligence to identify and provide notice of the removal to:

  • All adult relatives of the child, including relatives suggested by either parent as required under 42 U.S.C. 671(a)(29)
  • All the child’s siblings who are at least age 18

The department may not provide notice to a person listed above if the department knows or suspects that the person has caused family or domestic violence.

The notice must:

  • State that the child has been removed from the parents by the department
  • Set forth the options the relative may have under Federal, State, or local laws, including the care and placement of the child and other options that may be lost if the relative fails to respond to the notice
  • Describe the requirements for the relative to become a foster parent
  • Describe additional services available to the child placed in foster care

If a child alleged to be a child in need of services is taken into custody under an order of the court, and the court orders out-of-home placement, the department is responsible for that placement and care and must consider placing the child with a suitable and willing blood or an adoptive relative caregiver, including a grandparent, aunt, uncle, or adult sibling; a de facto custodian; or a stepparent before considering any other out-of-home placement.

Requirements for Placement with Relatives

A person may operate a foster family home without a license if the person is providing care only for one or more individuals related to the person, although the person may choose to apply for licensure. If an applicant otherwise qualifies for a foster family home license, the department may issue a foster family home license to the applicant.

Before the child is placed with a blood or adoptive relative caregiver, a de facto custodian, or a stepparent, the department shall complete an evaluation based on a home visit of the relative’s home. The department also shall conduct a criminal history check of each person who is currently residing in the location designated as the out-of-home placement.

Except as provided below, the department may not make an out-of-home placement if a person has:

  • Committed an act resulting in a substantiated report of child abuse or neglect
  • Been convicted of a felony listed in § 31-27-4-13 or had a juvenile adjudication for an act that would be a felony if committed by an adult

A court may order or the department may approve an out-of-home placement if a person has a record of substantiated child abuse or neglect or conviction of certain felonies if the court makes a written finding that the person’s commission of the offense, delinquent act, or act of abuse or neglect is not relevant to the person’s present ability to care for a child, and that the placement is in the best interests of the child. However, a court or the department may not make an out-of-home placement if the person has been convicted of a felony listed in § 31-27-4-13 that is not specifically excluded under this section.

In making its written finding, the court shall consider the following:

  • The length of time since the person committed the offense, delinquent act, or abuse or neglect
  • The severity of the offense, delinquent act, or abuse or neglect
  • Evidence of the person’s rehabilitation, including the person’s cooperation with a treatment plan, if applicable
Requirements for Placement of Siblings

The department shall make reasonable efforts to promote sibling visits for every child who receives foster care, including visits when one sibling receives foster care and another sibling does not.

A child; a child’s foster parent; a child’s guardian ad litem; a court-appointed special advocate; or an agency that has the legal responsibility or authorization to care for, treat, or supervise a child may request the department to permit the child to have visits with the child’s sibling if the child or the child’s sibling, or both, receive foster care. If the department finds that the sibling visits are in the best interests of each child who receives foster care, the department shall permit the sibling visits and establish a schedule for sibling visits.

Relatives Who May Adopt

A court hearing a petition for adoption of a child may waive the reports of the adoption investigation and social study if one of the petitioners is a stepparent or grandparent of the child and the court waives the period of supervision.

Requirements for Adoption by Relatives

If the court waives the reports required above, the court shall require the licensed child-placing agency for a child who is not adjudicated to be a child in need of services or, if the child is the subject of an open child in need of services action, each local office to insure that a criminal history check is conducted and to report to the court the results of the criminal history check.

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

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Current Through March 2016

What Are Reasonable Efforts

The term ‘reasonable efforts’ refers to measures taken to provide services to preserve and reunify families.

When Reasonable Efforts Are Required

The Department of Child Services shall make reasonable efforts to preserve and reunify families as follows:

  • If the child has not been removed from the home, to prevent or eliminate the need for removing the child
  • If the child has been removed from the home, to make it possible for the child to return safely home as soon as possible
When Reasonable Efforts Are NOT Required

Reasonable efforts to reunite a child with his or her family or to preserve a family are not required when the court finds any of the following:

  • A parent has been convicted of causing a suicide, involuntary manslaughter, rape, criminal deviate conduct, child molesting, or exploitation of a victim who is the parent’s child or the child’s other parent.
  • A parent has been convicted of murder or voluntary manslaughter of a victim who is the parent’s child or the child’s other parent.
  • A parent has been convicted of attempting, aiding, or conspiring to commit any of the above crimes.
  • A parent has been convicted of battery, aggravated battery, criminal recklessness, or neglect against a child.
  • The parental rights of a parent with respect to a sibling have been involuntarily terminated.
  • The child is an abandoned infant.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent of a minor may designate a standby guardian.

How to Establish a Standby Guardian

A parent may designate a standby guardian by making a written declaration naming the individual designated to serve as a standby guardian. A declarant may name an alternate to the designated standby guardian if the designated standby guardian is unable to serve, refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the declarant.

A declaration must contain the following information:

  • The names of the declarant, the designated standby guardian, and the alternate standby guardian, if any
  • The name and date of birth for each child for whom a standby guardian is being designated

A declaration executed under this section must be signed by the declarant in the presence of a notary public.

How Standby Authority is Activated

A declaration executed under this section becomes effective upon the death or incapacity (as defined in § 29-3-1-7.5) of the parent.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

A standby guardian shall have all the powers granted to a guardian under this article.

Withdrawing Guardianship

A declaration executed under this section terminates 90 days after the declaration becomes effective. If, however, the designated standby guardian files a petition for a guardianship of the minor during that 90 day period, the declaration remains in effect until the court rules on the petition.

 

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

 

 

CPS Statutes & Rules

It does not seem that Indiana has a “safety Threshold” that they determine their findings by. I will do more research on this.

CHAPTER 4 – ASSESSMENT

Table of Contents
Chapter 4 – Assessment 

Safety vs. Risk Assessment
It is important to keep in mind the difference between safety and risk when completing this form.
Safety assessment differs from risk assessment in that it assesses the child’s present danger
and the interventions currently needed to protect the child. In contrast, risk assessment looks at
the likelihood of future maltreatment.

Safety vs. Risk
Safety Assessments evaluate the degree of danger the child is presently in and the
interventions currently needed to protect the child. Risk Assessments look at the likelihood of
future maltreatment.

1. Caregiver’s behavior is violent or out of control. Examples may include, but are not
limited to: extreme physical or verbal outbursts directed at child; use of brutal or bizarre
punishment (e.g., scalding with hot water); domestic violence; use of guns, knives, or
Safety Factors (on Safety Assessment Tool)

Safety factors are unsafe conditions that presently exist in the child’s home. Any time one (1) or
more safety factors are determined to be present, one (1) or more safety responses
(interventions) will be required. (See “Safety Response” below). DCS recognizes 13 safety
factor categories. The categories are types of caregiver behaviors and actions that may pose a
threat to the child’s safety. The FCM may select as many of the categories as applicable. For
any categories selected, the FCM should provide a brief description of the specific individual’s
behaviors and related conditions, and/or circumstances.:

DCS CW Manual/Chapter 4 Section 18: Safety Assessment 3 of 4

other instruments in a violent way; shaking or choking infant or toddler in an attempt to
stop the infant or toddler’s behavior; behavior that seems out of touch with reality,
fanatical, or bizarre; behavior that demonstrates lack of control (e.g., reckless, unstable,
raving, explosive);

2. Caregiver describes or acts toward child in predominantly negative terms or has
extremely unrealistic expectations. Examples may include, but are not limited to:
caregiver describes child or talks to child in a demeaning or degrading manner (e.g.,
evil, stupid, ugly); curses at child; scapegoats child; has unrealistic expectations about
the child’s behavior given the child’s age (e.g., expects an infant or toddler to not cry, be
still for extended periods, eat neatly, be toilet-trained; expects a young child to care for
younger siblings, stay alone, etc.); blames child for caregiver’s problems;

3. Caregiver caused serious physical harm to child or made a plausible threat to cause
serious physical harm;

4. The caregiver’s explanation for the injury is unconvincing. Examples may include, but
are not limited to: the explanation is inconsistent with the type of injury; the explanation
minimizes the extent of the harm to the child; medical evaluation indicates injury is the
result of abuse yet caregiver attributes injury to accidental causes;

5. The family refuses to give the FCM access to the child and/or there is reason to believe
the family is about to flee and/or the child’s whereabouts cannot be ascertained.
Examples may include but are not limited to: family removes child from hospital against
advise of medical professionals; family has history of keeping child at home – away from
school, peers, friends, and other outsiders for extended periods of time;

6. Caregiver has not or will not provide necessary supervision to protect the child from
potentially serious harm. Examples may include, but are not limited to: Caregiver does
not attend to child and the result is a need that goes unmet (e.g., child can wander
outside alone, play with dangerous objects or in dangerous places, be exposed to
serious hazards, etc.); caregiver leaves child alone and this is inappropriate given child’s
developmental stage; caregiver demonstrates very poor planning for child’s care (e.g.,
inadequate or inappropriate baby-sitting/child care arrangements); caregiver’s
whereabouts are unknown;

7. Caregiver unwilling and/or unable to meet child’s immediate needs for food, clothing,
shelter, medical and/or mental health care;

8. Caregiver has previously maltreated a child and the severity of the maltreatment and/or
the caregiver’s response to the previous maltreatment suggests that the child’s safety
may be an immediate concern. Examples may include, but are not limited to: Caregiver
does not acknowledge or take responsibility for prior afflicted harm to child or explains
the incident(s) as justified; an escalating pattern of maltreatment exists, etc.;

9. Child is fearful of caregiver(s), other family members or other people living in/having
access to the home. Examples may include: child exhibits/verbalizes fear in the
presence of certain individuals (e.g., cries, cowers, trembles); child exhibits severe
anxiety (e.g., nightmares, insomnia) related to situations associated with person(s) in the
home; child has unreasonable fears of retribution and/or retaliation from caregivers;

10. Child’s physical living conditions are hazardous and immediately threatening;

11. Child sexual abuse is suspected and circumstances suggest that child’s safety may be
an immediate concern. Examples may include, but are not limited to: access to child by
alleged perpetrator; it appears that alleged perpetrator has committed rape, sodomy or
has had other sexual contact with the child; caregiver or others forced child to engage in
sexual activities/performances;

12. Caregiver’s substance/alcohol use seriously affects his/her ability to supervise, protect
or care for the child; and

13. Other

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT