Motion To Dismiss – CPS – Montana

How to write a Motion To Dismiss for CPS Juvenile Court InĀ Montana

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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.

Child Witnesses to Domestic Violence

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Current Through April 2016

Circumstances That Constitute Witnessing

In criminal law: If the offense [of assault of a partner or family member] was committed within the vision or hearing of a minor, the judge shall consider the minor’s presence as a factor at the time of sentencing.

Consequences

If the offense [of assault of a partner or family member] was committed within the vision or hearing of a minor, the judge shall consider the minor’s presence as a factor at the time of sentencing.

Definitions of Child Abuse and Neglect

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Current Through February 2016

Physical Abuse

‘Physical abuse’ means an intentional act, omission, or gross negligence resulting in substantial skin bruising, internal bleeding, substantial injury to skin, subdural hematoma, burns, bone fractures, extreme pain, permanent or temporary disfigurement, impairment of any bodily organ or function, or death.

‘Child abuse or neglect’ means:

  • Actual physical or psychological harm to a child
  • Substantial risk of physical or psychological harm to a child
  • Abandonment

The term includes:

  • Actual physical or psychological harm to a child, or substantial risk of physical or psychological harm to a child, by the acts or omissions of a person responsible for the child’s welfare
  • Exposing a child to the criminal distribution of dangerous drugs, the criminal production or manufacture of dangerous drugs, or the operation of an unlawful clandestine laboratory

‘Physical or psychological harm to a child’ means the harm that occurs whenever the parent or other person responsible for the child’s welfare inflicts or allows to be inflicted upon the child physical abuse, physical neglect, or psychological abuse or neglect.

Neglect

‘Physical neglect’ means:

  • Failure to provide basic necessities, including but not limited to appropriate and adequate nutrition, protective shelter from the elements, and appropriate clothing related to weather conditions
  • Failure to provide cleanliness and general supervision
  • Exposing or allowing the child to be exposed to an unreasonable physical or psychological risk to the child

‘Physical or psychological harm to a child’ means the harm that occurs whenever the parent or other person responsible for the child’s welfare:

  • Causes malnutrition, failure to thrive, or otherwise fails to supply the child with adequate food; fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or when offered financial or other reasonable means to do so
  • Exposes the child, or allows the child to be exposed, to an unreasonable risk to the child’s health or welfare by failing to intervene or eliminate the risk

‘Withholding of medically indicated treatment’ means failure to respond to an infant’s life-threatening conditions by not providing treatment, including appropriate nutrition, hydration, and medication, that in the treating physician’s or physicians’ reasonable medical judgment is most likely to be effective in ameliorating or correcting the conditions.

Sexual Abuse/Exploitation

‘Sexual abuse’ means the commission of sexual assault, sexual intercourse without consent, indecent exposure, deviate sexual conduct, ritual abuse, or incest.

‘Sexual exploitation’ means allowing, permitting, or encouraging a child to engage in a prostitution offense or allowing, permitting, or encouraging sexual abuse of children.

‘Physical or psychological harm to a child’ means the harm that occurs whenever a parent or other person responsible for the child’s welfare commits or allows sexual abuse or exploitation of the child.

Emotional Abuse

‘Psychological abuse or neglect’ means severe maltreatment through acts or omissions that are injurious to the child’s emotional, intellectual, or psychological capacity to function, including acts of violence against another person residing in the child’s home.

‘Physical or psychological harm to a child’ means the harm that occurs whenever a parent or other person responsible for a child’s welfare induces or attempts to induce the child to give untrue testimony that the child or another child was abused or neglected by a parent or other person responsible for the child’s welfare.

Abandonment

Citation: Ann. Code Ā§ 41-3-102
‘Abandon,’ ‘abandoned,’ and ‘abandonment’ mean:

  • Leaving a child under circumstances that make reasonable the belief that the parent does not intend to resume care of the child in the future
  • Willfully surrendering physical custody for a period of 6 months and during that period not manifesting to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child
  • That the parent is unknown and has been unknown for a period of 90 days and that reasonable efforts to identify and locate the parent have failed
  • The voluntary surrender, as defined in Ā§ 40-6-402, by a parent of a newborn who is no more than 30 days old, to an emergency services provider

‘Physical or psychological harm to a child’ means the harm that occurs when the parent or other person responsible for the child’s welfare abandons the child.

Standards for Reporting

Citation: Ann. Code Ā§ 41-3-201
A report is required when a mandatory reporter knows or has reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected by anyone regardless of whether the person suspected of causing the abuse or neglect is a parent or other person responsible for the child’s welfare.

Persons Responsible for the Child

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

  • The child’s parent, guardian, foster parent, or an adult who resides in the same home as the child
  • A person providing care in a daycare facility
  • An employee of a public or private residential institution, facility, home, or agency
  • Any other person responsible for the child’s welfare in a residential setting
Exceptions

The term ‘abandoned’ does not include the voluntary surrender of the child to the department solely because of parental inability to access publicly funded services.

The term ‘child abuse’ does not include self-defense, defense of others, or action taken to prevent the child from self-harm.

This chapter may not be construed to require or justify a finding of child abuse or neglect for the sole reason that a parent or legal guardian, because of religious beliefs, does not provide adequate health care for a child. This chapter may not be construed to limit the administrative or judicial authority of the State to ensure that medical care is provided to the child when there is imminent substantial risk of serious harm to the child.

The term ‘withholding medically indicated treatment’ does not include the failure to provide treatment, other than appropriate nutrition, hydration, or medication to an infant when, in the treating physician’s or physicians’ reasonable medical judgment:

  • The infant is chronically and irreversibly comatose.
  • The provision of treatment would merely prolong dying, not be effective in ameliorating or correcting all of the infant’s life-threatening conditions, or otherwise be futile in terms of the survival of the infant.
  • The provision of treatment would be virtually futile in terms of the survival of the infant, and the treatment itself under the circumstances would be inhumane.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

A person may file a petition for an order of protection if:

  • The petitioner is in reasonable apprehension of bodily injury by the petitioner’s partner or family member, as defined in Ā§ 45-5-206.
  • The petitioner is a victim of one of the offenses listed below committed by a partner or family member:
    • Assault or aggravated assault
    • Intimidation
    • Partner or family member assault
    • Criminal or negligent endangerment
    • Assault on a minor
    • Assault with a weapon
    • Unlawful restraint
    • Kidnapping or aggravated kidnapping
    • Arson
Defined in Child Abuse Reporting and Child Protection Laws

‘Psychological abuse or neglect’ means severe maltreatment through acts or omissions that are injurious to the child’s emotional, intellectual, or psychological capacity to function, including the commission of acts of violence against another person residing in the child’s home.

The term may not be construed to hold a victim responsible for failing to prevent the crime against the victim.

Defined in Criminal Laws

A person commits the offense of ‘partner or family member assault’ when the person:

  • Purposely or knowingly causes bodily injury to a partner or family member
  • Negligently causes bodily injury to a partner or family member with a weapon
  • Purposely or knowingly causes reasonable apprehension of bodily injury in a partner or family member
Persons Included in the Definition

‘Family member’ means mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, in-laws, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.

‘Partners’ means spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship.

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

Anyone investigating or reporting any incident of child abuse or neglect, participating in resulting judicial proceedings, or furnishing hospital or medical records pursuant to the reporting laws, is immune from any civil or criminal liability that might otherwise be incurred or imposed, unless the person was grossly negligent, acted in bad faith or with malicious purpose, or provided information knowing the information to be false.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

When a mandated reporter knows or has reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected, he or she shall promptly make a report to the Department of Public Health and Human Services.

Content of Reports

The report must contain:

  • The names and addresses of the child and the child’s parents or other persons responsible for the child’s care
  • To the extent known, the nature and extent of the child’s injuries, including any evidence of prior injuries
  • Any other information that the reporter believes might be helpful in establishing the cause of the injuries or showing the willful neglect and the identity of the person or persons responsible for the injury or neglect
  • The facts that led the reporter to believe that the child suffered injury or willful neglect
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 suspicion to the appropriate medical examiner or law enforcement officer.

Reporting Substance-Exposed Infants

A physician or other health-care professional involved in the delivery or care of an infant shall report to the department any infant known to the professional to be affected by a dangerous drug, as defined in Ā§ 50-32-101.

Agency Receiving the Reports

All reports of child abuse or neglect must be made through the child abuse hotline.

Initial Screening Decisions

Upon receipt of a report that a child is or has been abused or neglected, the department shall promptly assess the information contained in the report and make a determination regarding the level of response required and the timeframe within which action must be initiated.

In regulation: When the child abuse hotline receives an incoming communication, the intake specialist will use standardized questions to screen the communication and determine:

  • The type of child abuse or neglect alleged
  • The level of response required
  • How the report will be classified

When the incoming communication received by the hotline contains an allegation of child abuse or neglect requiring investigation, the intake specialist shall transmit the report to a local office for a response pursuant to Ā§ 41-3-202.

When an incoming communication received by the hotline results in a report alleging child abuse or neglect that indicates a child may be in immediate danger of serious harm, thus requiring an immediate response, the intake specialist will promptly contact the appropriate social worker in the field designated to receive those reports and verbally inform the field social worker of:

  • The nature of the concerns
  • Where the child or children of concern can be located
  • Any other information necessary to facilitate protection of the child or children
Agency Conducting the Assessment/Investigation

If the department determines that an investigation is required, a social worker, the county attorney, or a peace officer shall promptly conduct a thorough investigation into the circumstances surrounding the allegations of abuse or neglect of the child.

Assessment/Investigation Procedures

An initial investigation of alleged abuse or neglect may be conducted when an anonymous report is received. However, the investigation must within 48 hours result in the development of independent, corroborative, and attributable information in order for the investigation to continue. Without the development of independent, corroborative, and attributable information, a child may not be removed from the home.

The social worker is responsible for assessing the family and planning for the child. If the child is treated at a medical facility, the social worker, county attorney, or peace officer, consistent with reasonable medical practice, has the right of access to the child for interviews, photographs, and securing of physical evidence and has the right of access to relevant hospital and medical records pertaining to the child. If an interview of the child is considered necessary, the social worker, county attorney, or peace officer may conduct an interview of the child. The interview may be conducted in the presence of the parent or guardian or an employee of the school or daycare facility attended by the child.

Timeframes for Completing Investigations

The investigating social worker shall furnish a written report to the department within 60 days of commencing an investigation.

Classification of Reports

From the results of the investigation, the department shall determine whether the report is substantiated, unfounded, or unsubstantiated.

Parental Drug Use as Child Abuse

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Current Through April 2015

‘Child abuse or neglect’ includes exposing a child to the criminal distribution of dangerous drugs, as prohibited by Ā§ 45-9-101, the criminal production or manufacture of dangerous drugs, as prohibited by Ā§ 45-9-110, or the operation of an unlawful clandestine laboratory, as prohibited by Ā§ 45-9-132.

A physician or other health-care professional involved in the delivery or care of an infant shall report to the department any infant known to the professional to be affected by a dangerous drug, as defined in Ā§ 50-32-101.

A person, whether or not the person is supervising the welfare of a child younger than age 18, commits the offense of endangering the welfare of children if the person, in the residence of a child, in a building, structure, conveyance, or outdoor location where a child might reasonably be expected to be present, in a room offered to the public for overnight accommodation, or in any multiple-unit residential building, knowingly:

  • Produces or manufactures methamphetamine or attempts to produce or manufacture methamphetamine
  • Possesses any material, compound, mixture, or preparation that contains any combination of the items listed in Ā§ 45-9-107 with intent to manufacture methamphetamine
  • Causes or permits a child to inhale, be exposed to, have contact with, or ingest methamphetamine or be exposed to or have contact with methamphetamine paraphernalia

A person convicted under the subsection above is guilty of a felony and shall be imprisoned in the State prison for a term not to exceed 5 years and may be fined an amount not to exceed $10,000, or both. If a child suffers serious bodily injury, the offender shall be fined an amount not to exceed $25,000 or be imprisoned for a term not to exceed 10 years, or both. Prosecution or conviction of a violation of this subsection does not bar prosecution or conviction for any other crime committed by the offender as part of the same conduct.

A person convicted of operation of an unlawful clandestine laboratory shall be fined an amount not to exceed $50,000, be imprisoned in a State prison for a term not to exceed 50 years, or both, if the operation of an unlawful clandestine laboratory or any phase of the operation:

  • Created a substantial risk of death of or serious bodily injury to another
  • Took place within 500 feet of a residence, business, church, or school
  • Took place in the presence of a person younger than age 18

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

In every judicial proceeding, the court shall appoint a guardian ad litem (GAL) for any child alleged to be abused or neglected.

Any party involved in a petition filed pursuant to Ā§ 41-3-422 has the right to counsel in all proceedings held pursuant to the petition.

Except as provided below, the court shall immediately appoint the Office of State Public Defender to assign counsel for:

  • Any indigent parent, guardian, or other person having legal custody of a child or youth in a removal, placement, or termination proceeding pursuant to Ā§ 41-3-422, pending a determination of eligibility pursuant to Ā§ 47-1-111
  • Any child or youth involved in a proceeding under a petition filed pursuant to Ā§ 41-3-422 when a GAL is not appointed for the child or youth
  • Any party entitled to counsel at public expense under the Federal Indian Child Welfare Act

When appropriate, the court may appoint the Office of State Public defender to assign counsel for any child or youth involved in a proceeding under a petition filed pursuant to Ā§ 41-3-422 when a GAL is appointed for the child or youth.

When appropriate and in accordance with judicial branch policy, the court may assign counsel at the court’s expense for a GAL or a court-appointed special advocate (CASA) involved in a proceeding under a petition filed pursuant to Ā§ 41-3-422.

The Use of Court-Appointed Special Advocates (CASAs)

Upon its own motion or upon the request of the Department of Public Health and Human Services, the citizen review board, or any interested party, the district court may appoint an attorney or other person as special advocate to represent or appear on behalf of the child. Subject to the direction of the district court, the CASA shall:

  • Investigate all relevant information about the case
  • Advocate for the child, ensuring that all relevant facts are brought before the court
  • Facilitate and negotiate to ensure that the district court, the department, and the child’s attorney fulfill their obligations to the child in a timely fashion
  • Monitor all district court orders to ensure compliance and to bring to the district court’s attention any change in circumstance that may require modification of the district court’s order
Qualifications/Training

The Department of Public Health and Human Services or any member of its staff who has a direct conflict of interest may not be appointed as the GAL in a judicial proceeding under this title.

The GAL must have received appropriate training that is specifically related to serving as a child’s court-appointed representative.

Any party may petition the court for the removal and replacement of the GAL if the GAL fails to perform the duties of the appointment.

Specific Duties

The GAL is charged with the representation of the child’s best interests and shall perform the following general duties:

  • To conduct investigations to ascertain the facts constituting the alleged abuse or neglect
  • To interview or observe the child who is the subject of the proceeding
  • To have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child’s siblings and parents or custodians
  • To make written reports to the court concerning the child’s welfare
  • To appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child’s welfare
  • To perform other duties as directed by the court
  • If the GAL is an attorney, to file motions, including, but not limited to, filing to expedite proceedings or otherwise assert the child’s rights

Information contained in a report filed by the GAL or testimony regarding a report filed by the GAL is not hearsay when it is used to form the basis of the GAL’s opinion as to the best interests of the child.

How the Representative Is Compensated

When necessary, the GAL may serve at public expense.

A State-funded district court program under the judicial branch shall fund all district court costs. These costs include expenses associated with appointment of a GAL or child advocate for the youth.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

A case plan must be completed within 30 days for a child placed under a voluntary placement agreement and within 60 days for a child placed under a court order.

The plan must be updated or a new plan developed when a child moves to a new placement setting. The case plan also must be updated whenever a change in the permanent plan for the child occurs. At a minimum, the case plan must be updated at least every 6 months.

Who May Participate in the Case Planning Process

The case plan must:

  • Be developed jointly with the parents or guardian of the child
  • Offer parents or guardians the opportunity to participate in the development of the case plan

If the parents or guardians are unwilling or unable to participate in the development of the case plan, the reason for the lack of participation must be noted in the plan.

Contents of a Case Plan

The case plan must:

  • Describe the placement setting of the child and the plan for ensuring that the child receives safe and appropriate care in that setting
  • Demonstrate that the child’s placement is the least restrictive, most familylike setting available and in close proximity to the home of the parents when the case plan goal is reunification
  • Demonstrate that the placement is in the best interests of the child and that the special needs of the child are being met
  • Describe the services offered and provided to prevent removal of the child from his or her home, the services offered and provided to improve the conditions in the parents’ home and facilitate the safe return home of the child, or the permanent placement of the child
  • Describe the services that are being provided to the child and his or her foster parents and why these services are appropriate to address the needs of the child while in foster care
  • Include, when reunification is not possible, documentation of the steps that are being taken to find an adoptive family, a fit and willing relative, a legal guardian, or another planned permanent living arrangement, and to finalize the adoption or establish legal guardianship
  • Include the most recent health and education records of the child, including:
    • The names and addresses of the child’s health providers
    • The child’s educational status, including:
      • The services already provided and to be provided to the child or out-of-home caregiver to address the child’s educational needs
      • Assurances that each placement of the child in foster care takes into account the appropriateness of the current educational setting, the proximity to the school in which the child is enrolled at the time of placement, and an assurance that the division has coordinated with the appropriate school officials to ensure that the child remains in the same educational setting
      • If remaining in the current educational setting is not in the child’s best interests, document the reasons why moving the child out of the current school district is in his or her best interests and assurances that the division and the local school officials will provide immediate and appropriate enrollment in a new school, with all of the educational records of the child provided to the school
    • A record of the child’s immunizations, known medical problems, and medications
    • Any other relevant health and education information concerning the child determined to be appropriate by the State agency
  • For a youth age 16 or older, include:
    • A written transitional living plan that describes the programs and services that will help the youth prepare for the transition from foster care to independent living
    • A copy of any consumer credit report on the youth for each year until discharged from foster care, and assistance in interpreting the credit report and resolving any inaccuracies
  • In the 90 days immediately prior to youth’s 18th birthday, describe efforts made to:
    • Offer the youth assistance and support in development and implementation of a personalized transitional plan, including options such as housing, health insurance, education, mentors, support services, workforce supports, and employment
    • Offer the youth information about the importance of designating another individual to make health-care treatment decisions for him or her if he or she becomes unable to participate in such decisions and he or she does not have, or does not want, a relative who would otherwise be authorized under State law to make such decisions
    • Provide the youth with the option of designing and executing a health-care power-of-attorney, proxy, or similar document

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

 

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

When a child is in foster care under the supervision of the Department of Public Health and Human Services, the foster care review committee shall conduct a review of the foster care status of the child. The review must be conducted within the time limit established under the Adoption and Safe Families Act of 1997 (42 U.S.C. 675(5)).

A permanency hearing must be held by the court, the foster care review committee, or the citizen review board:

  • Within 30 days of a determination that reasonable efforts to provide preservation or reunification services are not necessary
  • No later than 12 months after the initial court finding that the child has been subjected to abuse or neglect or 12 months after the child’s first 60 days of removal from the home, whichever comes first

Within 12 months of the initial permanency hearing, and every 12 months thereafter until the child is permanently placed in either an adoptive or a guardianship placement, the court or the court-approved entity holding the permanency hearing shall conduct a hearing, and the court shall issue a finding as to whether the department has made reasonable efforts to finalize the permanency plan for the child.

Persons Entitled to Attend Hearings

Reasonable notice of each review must be sent to the following:

  • The parents of the child or their attorneys
  • If applicable, the foster parents, a relative caring for the child, the preadoptive parents, or the surrogate parents
  • The child who is the subject of the review if he or she is age 12 or older
  • The child’s attorney, if any
  • The child’s guardian ad litem
  • The court-appointed attorney or special advocate of the child
  • A representative of the child’s Indian Tribe if the child is an Indian
Determinations Made at Hearings

The foster care review committee shall hear the case of each child in foster care to review issues that are germane to the goals of permanency and to accessing appropriate services for parents and children. In evaluating the accessibility, availability, and appropriateness of services, the committee shall consider:

  • The safety, history, and specific needs of the child
  • Whether an involved agency has selected services specifically relevant to the problems and needs of the child and family
  • Whether appropriate services have been available to the child and family on a timely basis
  • The results of intervention
  • If the child is placed in foster care in another State, whether the placement is appropriate and in the best interests of the child

The permanency hearing may be combined with other required review hearings. If an entity other than the court conducts the hearing, the entity shall keep minutes of the hearing and the minutes and written recommendations must be provided to the court within 20 days of the hearing. If the court concurs with the recommendations, the court may adopt the recommendations as findings with no additional hearing required. In this case, the court shall issue written findings within 10 days of receipt of the written recommendations.

The court shall approve a specific permanency plan for the child and make written findings on:

  • Whether the permanency plan is in the best interests of the child
  • Whether the department has made reasonable efforts to finalize the plan
  • Other necessary steps that the department is required to take to effect the terms of the plan
Permanency Options

Permanency options include:

  • Reunification with the child’s parent or guardian
  • Adoption
  • Appointment of a guardian
  • Long-term custody if the child is in a planned permanent living arrangement, and:
    • The child is being cared for by a fit and willing relative.
    • The child has an emotional or mental handicap that is so severe that the child cannot function in a family setting and the best interests of the child are served by placement in a residential or group setting.
    • The child is at least age 16 and is participating in an Independent Living program.
    • The child’s parent is incarcerated, and circumstances indicate that it would not be in the best interests of the child to terminate parental rights of that parent.
    • There is a judicial finding that other more permanent placement options for the child have been considered and found to be inappropriate or to be not in the best interests of the child.
    • The child has been in a placement in which the foster parent or relative has committed to the long-term care of and a relationship with the child, and it is in the best interests of the child to remain in that placement.

Determining the Best Interests of the Child

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Current Through March 2016

It is the policy of the State of Montana to:

  • Provide for the protection of children whose health and welfare are or may be adversely affected and further threatened by the conduct of those responsible for their care and protection
  • Achieve these purposes in a family environment and preserve the unity and welfare of the family, whenever possible
  • Ensure that there is no forced removal of a child from the family based solely on an allegation of abuse or neglect unless the department has reasonable cause to suspect that the child is at imminent risk of harm
  • Recognize that a child is entitled to assert the child’s constitutional rights
  • Ensure that all children have a right to a healthy and safe childhood in a permanent placement
  • Ensure that whenever removal of a child from the home is necessary, the child is entitled to maintain ethnic, cultural, and religious heritage, whenever appropriate

It is intended that the mandatory reporting of abuse or endangerment cases by professional people and other community members to the appropriate authority will cause the protective services of the State to seek to prevent further abuses, protect and enhance the welfare of these children, and preserve family life, whenever appropriate.

Whenever it is necessary to remove a child from the child’s home, the department shall, when it is in the best interests of the child, place the child with the child’s noncustodial birth parent or with the child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, when placement with the extended family is approved by the department, prior to placing the child in an alternative protective or residential facility. Prior to approving a placement, the department shall investigate whether anyone living in the home has been convicted of a crime involving serious harm to children.

In implementing this policy, the child’s health and safety are of paramount concern.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may order a termination of parental rights upon a finding established by clear and convincing evidence that any of the following circumstances exist:

  • The child has been abandoned.
  • The parent has been convicted of a felony sexual offense that resulted in the birth of the child.
  • The parent has:
    • Subjected a child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, sexual abuse, or chronic and severe neglect
    • Committed, aided, abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child
    • Committed aggravated assault against a child
    • Committed neglect of a child that resulted in serious bodily injury or death
    • Had parental rights to the child’s sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent’s ability to adequately care for the child at issue
  • A putative father has failed to do any of the following:
    • Contribute to the support of the child for an aggregate period of 1 year, although able to do so
    • Establish a substantial relationship with the child, as demonstrated by visiting the child at least monthly or maintaining regular contact when physically and financially able to do so
    • Register with the putative father registry
  • Reasonable efforts to rehabilitate the parent have failed.
  • The conduct or condition of the parent makes the parent unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider, but is not limited to, the following:
    • Emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time
    • A history of violent behavior by the parent
    • Excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child
    • Incarceration of the parent for more than 1 year, and reunification of the child with the parent is not in the best interests of the child because of the child’s circumstances, including placement options; age; and developmental, cognitive, and psychological needs
Circumstances That Are Exceptions to Termination of Parental Rights

If a proceeding under this chapter involves an Indian child and is subject to the Federal Indian Child Welfare Act, a qualified expert witness is required to testify that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

To better understand this issue and to view it across States, download the PDF (556 KB) of this publication.

Current Through February 2013

Infant’s Age

A newborn infant may be surrendered under this act. The term ‘newborn’ means an infant whom a physician reasonably believes to be no more than 30 days old.

Who May Relinquish the Infant

A parent may surrender the child. The term ‘surrender’ means to leave a newborn with an emergency services provider without expressing an intent to return for the newborn.

Who May Receive the Infant

The child may be surrendered to an emergency services provider, including:

  • A uniformed or otherwise identifiable employee of a fire department, hospital, or law enforcement agency, when the individual is on duty inside the premises of the fire department, hospital, or law enforcement agency
  • Any law enforcement officer who is in uniform or is otherwise identifiable
Responsibilities of the Safe Haven Provider

The emergency services provider shall, without a court order, immediately take the newborn into temporary protective custody and shall take action necessary to protect the physical health and safety of the newborn. The emergency services provider shall make a reasonable effort to do all of the following:

  • Inform the parent that by surrendering the newborn, he or she is releasing the newborn to be placed for adoption
  • Inform the parent that he or she has 60 days to petition the court to regain custody of the newborn
  • Encourage the parent to provide any relevant family or medical information, including information regarding any Tribal affiliation
  • Provide the parent with information about counseling or medical attention
  • Ask the parent for the parent’s name
  • Inform the parent that the State is required to make a reasonable attempt to identify the other parent and to obtain relevant medical family history and then ask the parent to identify the other parent
  • Inform the parent that the department can provide confidential services to the parent
  • Inform the parent that the parent may sign a relinquishment for the newborn to be used at a hearing to terminate parental rights

An emergency services provider that is not a hospital shall transfer the newborn to a hospital. A hospital that takes a newborn into temporary protective custody must have the newborn examined by a physician. If a physician who examines the newborn either determines that there is reason to suspect the newborn has experienced abuse or neglect, other than being surrendered to an emergency services provider, or that the infant is not a newborn, the physician shall immediately report to the Department of Public Health and Human Services.

The hospital shall, no later than the first business day after taking possession of the newborn, notify the department that the hospital has taken a newborn into temporary protective custody.

Immunity for the Provider

A hospital and the agents and employees of the hospital are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this part, except for an act or omission constituting gross negligence or willful or wanton misconduct.

A fire department or law enforcement agency and the agents and employees of a fire department or law enforcement agency are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this part, except for an act or omission constituting gross negligence or willful or wanton misconduct.

Protection for Relinquishing Parent

Information that the parent provides to an emergency services provider will not be made public.

A criminal investigation may not be initiated solely on the basis of a newborn being surrendered to an emergency services provider in the absence of reasonable suspicion of actual abuse or neglect. Except when there is intentional infliction of injury to the abandoned infant, a criminal prosecution may not be initiated involving the abandonment of an infant that was no more than 30 days old and was surrendered to an emergency services provider.

Effect on Parental Rights

Any Indian heritage brings the newborn within the jurisdiction of the Indian Child Welfare Act.

Upon receipt of notice that a newborn has been surrendered, the department shall:

  • Request assistance from law enforcement officials to investigate and determine whether the newborn is a missing child
  • Within 30 days, make reasonable efforts to identify and locate a parent who did not surrender the newborn

The department is not required to attempt to reunify the newborn with the newborn’s parents. The department shall place the newborn with prospective adoptive parents as soon as possible.

Any person alleging to be the biological parent of a newborn who was surrendered to an emergency services provider may, within 60 days of the date of surrender of the newborn, file an action with the court for custody. Before making a custody decision, the court shall determine whether the individual filing the custody action is the newborn’s biological parent. The putative father registry provisions apply to any court proceeding under this part.

In a custody action, the court shall determine custody of the newborn based on the newborn’s best interest with the goal of achieving permanent placement for the newborn at the earliest possible date.

A parent who surrenders a newborn and who does not file a custody action is presumed to have knowingly waived the parent’s parental rights to the newborn. If a custody action is not filed or if the parent is denied custody of the newborn, the department shall file a petition requesting appropriate relief with the goal of achieving permanent placement for the newborn at the earliest possible date.

Kinship Guardianship as a Permanency Option

To better understand this issue and to view it across States, download the PDF (1337 KB) of this publication.

Current Through December 2014

Definitions

A ‘legal guardian’ is a person who has qualified as a caregiver of a child in the custody of the Department of Public Health and Human Services or Tribe and has been appointed guardian by the court.

A ‘legal guardianship’ is a judicially created relationship between a child and caregiver that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver the following parental rights with respect to the child: protection, education, care and control of the child, custody of the child, and decision-making.

A ‘kinship guardian’ is:

  • A member of the child’s extended family
  • A member of the child’s or family’s Tribe
  • The child’s godparents
  • The child’s stepparents
  • A person to whom the child, child’s parents, and family ascribe a family relationship and with whom the child has had a significant emotional tie that existed prior to the agency’s involvement with the child or family; also known as ‘fictive kin’

Documentation demonstrating that the prospective guardian meets the ‘fictive kin’ definition must be maintained in the child’s case file. Documentation may include, but is not limited to, the child’s and/or birth parent(s) statement ascribing a family relationship and significant emotional tie that existed prior to the agency’s involvement.

A ‘nonkinship guardian’ is a person to whom the child or child’s family did not have a significant emotional tie that existed prior to the agency’s involvement with the child or family (i.e. foster parent).

Purpose of Guardianship

A guardian may be appointed for a dependent child when the Department has made reasonable efforts to reunite the parent and child, further efforts to reunite the parent and child by the department likely would be unproductive, and reunification of the parent and child would be contrary to the best interests of the child.

A Guardian’s Rights and Responsibilities

A guardian appointed under this section may exercise the powers and has the duties provided in Ā§ 72-5-231.

Unless otherwise limited by the court, a guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent’s child. However, a guardian is not legally obligated to provide from the guardian’s own funds for the child and is not liable to third persons by reason of the parental relationship for acts of the child.

The guardian is empowered to facilitate the child’s education, social, or other activities and to authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the child resulting from the negligence or acts of third persons, unless it would have been illegal for a parent to have consented. A guardian also may consent to the marriage or adoption of the child.

Qualifying the Guardian

In order to be approved as a guardian, the prospective guardian and the guardian’s home must meet the requirements set forth for youth foster homes in title 37, chapter 51 of the Administrative Rules.

The child for whom guardianship is being considered must have resided with the prospective guardian for a minimum of 6 months.

A written assessment of the prospective guardian and the guardian’s home must be completed. The assessment must include a determination that the prospective guardian and home of the prospective guardian meet the requirements of this rule. The assessment must demonstrate the appropriateness of the proposed guardian to become the legal custodian for a specific child. Factors to be considered in determining the appropriateness of the proposed guardian include:

  • The proposed guardian’s knowledge of the child’s background, including placement history, history of trauma, and the potential effect of that history on the child’s development and future functioning
  • Understanding and acceptance of the continued role of the child’s birth family
  • Understanding and acceptance of the powers and duties of a guardian
  • The desire of the prospective guardian to become the child’s guardian

If the child for whom guardianship is being considered is age 12 or older, the child must be consulted regarding the plan for guardianship.

Procedures for Establishing Guardianship

The court may, upon the petition of the department or guardian ad litem, enter an order appointing a guardian for a child who has been placed in the temporary or permanent custody of the department. The court may appoint a guardian if the following facts are found by the court:

  • The department has given its written consent to the appointment of the guardian, and whether or not the guardianship is to be subsidized.
  • If the guardianship is to be subsidized, the department has given its written consent after the department has considered initiating or continuing financial subsidies.
  • The child has been adjudicated a youth in need of care.
  • The child has lived with the potential guardian in a family setting, and the potential guardian is committed to providing a long-term relationship with the child.
  • It is in the best interests of the child to remain with or to be placed with the potential guardian.
  • Either termination of parental rights to the child is not in the child’s best interests or parental rights to the child have been terminated, but adoption is not in the child’s best interests.
  • If the child for whom the petition for guardianship has been filed is an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the child’s Tribe has received notification from the State of the initiation of the proceedings.

In the case of an abandoned child, the court may give priority to a member of the abandoned child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, if placement with the extended family member is in the best interests of the child.

Contents of a Guardianship Order

The entry of a decree of guardianship pursuant to this section terminates the custody of the department and the involvement of the department with the child and the child’s parents, except for the department’s provision of a financial subsidy, if any.

Modification/Revocation of Guardianship

The court may revoke a guardianship if the court finds, after hearing a petition for removal of the child’s guardian, that continuation of the guardianship is not in the best interests of the child. Notice of a hearing on the petition must be provided by the moving party to the child’s lawful guardian, the department, any court-appointed guardian ad litem, the child’s parent if the rights of the parent have not been terminated, and other persons directly interested in the welfare of the child.

A guardian may petition the court for permission to resign the guardianship. A petition may include a request for the appointment of a successor guardian. After notice and hearing the petition for removal or permission to resign, the court may appoint a successor guardian or may terminate the guardianship and restore temporary legal custody to the department.

Eligibility for Guardianship Subsidy

The department may provide a financial subsidy to a guardian if the guardianship meets the department’s criteria and if the department determines that a subsidy is in the best interests of the child.

In regulation: A child is eligible to have State-subsidized guardianship payments made on the child’s behalf if the child has been adjudicated a youth in need of care. Subsidized guardianship payments may be made to the guardian of an eligible child when:

  • The child meets the guardianship criteria found in Ā§ 41-3-444.
  • The prospective guardian and guardian’s home meet the requirements of regulation.
  • The court has issued a decree of guardianship.
  • An agreement describing the terms and conditions of the guardianship subsidy has been negotiated by the department with the prospective guardian.
  • Prior to the issuance of the guardianship decree, the prospective guardian and the department have signed an agreement describing the negotiated terms and conditions of the subsidy.

Under the Title IV-E State Plan, Guardianship Assistance Program, approved by the U.S. Department of Health and Human Services, the department is authorized to utilize Federal funds to pay guardianship subsidies on behalf of children who meet the requirements established under the terms and conditions of the Title IV-E State Plan, Guardianship Assistance Program.

Federally subsidized guardianship payments may be made to the guardian of an eligible child when:

  • The prospective guardian meets the definition of a ‘kinship guardian’ as established in the Title IV-E State Plan.
  • The requirements of Administrative Rule 37.51.1101 are met.
  • The requirements established under the Title IV-E State Plan and the requirements of Administrative Rule 37.50.1102 are met.
Links to Agency Policies

Montana Department of Public Health and Human Services, Child & Family Services Policy Manual, see sections 302-4 and 407-4.

Placement of Children With Relatives

To better understand this issue and to view it across States, download the PDF (627 KB) of this publication.

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Whenever it is necessary to remove a child from the child’s home, the Department of Public Health and Human Services shall, when it is in the best interests of the child, place the child with the child’s noncustodial birth parent or with the child’s extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, when placement with the extended family is approved by the department, prior to placing the child in an alternative protective or residential facility.

Requirements for Placement with Relatives

Prior to approving a placement, the department shall investigate whether anyone living in the home has been convicted of a crime involving serious harm to children.

In regulation: The department may, at its discretion, issue a provisional license restricted for care of a specific child or children for any period up to 4 months to any license applicant for a kinship foster home that has:

  • Met all licensing requirements for fire safety
  • Completed and signed a release of information form provided by the department
  • Submitted completed fingerprint cards on all adult household members
  • A satisfactory child protective and adult protective services check for all adults present in the home
  • Agreed in writing to comply fully with all licensing requirements established by these rules prior to the expiration of the provisional license

The department may, at its discretion, renew a provisional license for no more than 2 months if the license applicant shows good cause for unintentional failure to comply fully with all licensing requirements within the time period covered by the prior provisional license.

Requirements for Placement of Siblings

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

Relatives Who May Adopt

A parent or guardian may make a direct parental placement of his or her child for adoption with an extended family member.

The term ‘extended family member’ means a person who is or was the adopted child’s parent, grandparent, aunt or uncle, brother or sister, or child.

Requirements for Adoption by Relatives

In a direct parental placement adoption, if the court is satisfied that adoption is in the best interests of the child, the court may waive the requirement of a preplacement and postplacement evaluation when a parent or guardian places a child for adoption directly with an extended family member of the child.

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 include, but are not limited to:

  • Voluntary protective services agreements
  • Development of individual written case plans specifying State efforts to reunify families
  • Placement in the least disruptive setting possible
  • Provision of services pursuant to a case plan
  • Periodic review to ensure timely progress
When Reasonable Efforts Are Required

The Department of Public Health and Human Services shall make reasonable efforts:

  • To prevent the necessity of removal of a child from a child’s home
  • To reunify families that have been separated
When Reasonable Efforts Are NOT Required

Reasonable efforts are not required if a court finds by clear and convincing evidence that a parent has:

  • Subjected a child to aggravated circumstances, including abandonment, torture, chronic abuse, sexual abuse, or chronic and severe neglect
  • Committed, aided, abetted, or attempted to commit homicide of a child
  • Committed aggravated assault against a child
  • Committed neglect of a child that resulted in serious bodily injury or death
  • Had parental rights to a sibling terminated involuntarily, and circumstances of the termination are relevant to the parent’s ability to adequately care for the child at issue

Preservation or reunification services are not required for a putative father if the court finds that the putative father has failed to do any of the following:

  • Contribute to the support of the child for an aggregate period of 1 year, although able to do so
  • Establish a substantial relationship with the child, as demonstrated by:
    • Visiting the child at least monthly when physically and financially able to do so
    • Having regular contact with the child
    • Manifesting an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent
  • Register with the putative father registry, been adjudicated to be the father of the child for the purposes of child support, or been recorded on the child’s birth certificate as the child’s father

Standby Guardianship

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

Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

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

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

 

 

CPS Statutes & Rules

Reference Information

101-1 Reference Information Definitions 04/2015
102-1 Initial Placement through Finalized Adoption 10/2007
103-1 Family Group Decision Making 01/2016
104-1 Child Protective Team 10/2007
105-1 Foster Parents’ Liability Insurance 03/2014
106-1 Fair Hearing Process 01/2014
107-1 Contract Monitoring 10/2011
108-1 HIV / AIDS 10/2007
109-1 Child Care 01/2014
110-1 Required Training 10/2010
111-1 Attending Graduate School With or Without a Title IV-E Stipend 03/2012
112-1 Background Checks for Employees of CFSD 10/2009
113-1 Complaints 09/2014
114-1 Continuous Quality Improvement 04/2015

Investigation

201-1 Legal Base 11/2015
201-2 Philosophy 11/2015
202-1 Reports of Child Abuse and Neglect 11/2015
202-2 Taking a Report / Referral 12/2015
202-3 Investigation of the Report 12/2015
202-4 Documentation of Investigation and Opening a Case 11/2015
202-5 Investigations in Out-of-Home Care 09/2014
202-6 Third Party Abuse 12/2015
202-7 Reports of Suspected Medical Neglect of Handicapped Infants 10/2007
202-8 Critical Incidents and Internal Reviews 10/2011
204-1 Dissolution Proceedings – General Information 10/2007
204-2 Dissolution Proceedings – Child Custody Investigation / Report 10/2007
205-1 In-Home Services 01/2013
205-2 Documenting Case Management Services Without a Removal 05/2012
Critical Incident Policy
Critical Incident Response Procedure
Critical Incident Review Procedure

Legal Procedure

301-1 Child Abuse and Neglect Petitions – General Requirements 10/2011
301-2 Required Judicial Hearings 10/2011
302-1 Immediate Protection and Emergency Protective Services 02/2015
302-2 Temporary Investigative Authority 10/2007
302-3 Temporary Legal Custody 10/2007
302-4 Guardianship 09/2014
302-5 Long-Term Custody 01/2014
302-6 Termination of the Parent-Child Legal Relationship / PLC 06/2015
302-7 Determination that Preservation or Reunification Services Need Not Be Provided – Reasonable Efforts 10/2007
303-1 Treatment Plan / Stipulation 10/2009
303-2 Relinquishment / Birth Parent Counseling 09/2014
304-1 Non-Custodial, Unknown, or Cannot-be-Located Parent 10/2013
304-2 Diligent Search 03/2015
305-1 Indian Child Welfare Act 01/2017
305-2 Abandoned Newborns 10/2009
305-3 Limited Emancipation 10/2007

Substitute Care for Children

401-1 Philosophy 09/2014
401-2 Types of Substitute Care 09/2014
401-3 Reasonable and Prudent Parenting Standard 09/2015
402-1 Placement Procedures- Voluntary and Involuntary Placements 10/2011
402-2 Foster Care Case Plan – DocGen 427, Parts A and B 12/2015
402-3 Concurrent Planning and Placement 01/2012
402-4 Placement in Kinship Care 02/2015
402-5 Supervision of Out-of-Home Placements 09/2015
402-6 Request for Courtesy Supervision and Case Transfer 09/2014
402-7 Interstate Compact on the Placement of Children(ICPC)
Placement of Children Into or Out of State
10/2012
402-8 School Attendance 07/2012
403-1 Foster Child – Income or Resources 10/2009
403-2 Trust Accounts 10/2010
404-1 Child Support Enforcement Referrals 10/2009
405-1 IV-E Foster Care Attachment 09/2010
405-1 Attachment IV-E Foster Care Attachment 02/2015
405-2 SSI 10/2009
405-3 Emergency Assistance Services 10/2009
405-4 Continuation of Foster Care Payments After Age 18 10/2009
405-5 Foster Care Support Services: General Provisions 10/2011
405-6 Clothing Allowance 10/2013
405-7 Diaper Allowance 10/2011
405-8 Supplemental Services Allowance 10/2011
405-9 Incorporated into 405-8 and this section was deleted 10/2011
405-10 Respite Care Allowance 10/2011
405-11 Foster Care Support Services: Approval / Denial / Appeal / Fair Hearing 09/2014
405-12 Completion of DPHHS-AD057X 10/2007
406-1 Specialized Foster Care 02/2010
406-2 Medicaid Reimbursed Therapeutic Service – TYGH and TFFC 10/2011
406-3 Therapeutic Family Foster Care – Non-Medicaid 10/2011
406-4 Residential Chemical Dependency Treatment 10/2011
406-5 Placement of Youth in Acute Psychiatric Hospitalization or a
Residential Treatment Facility
10/2011
407-1 Legal Risk Pre-Adoptive Placement 10/2007
407-2 Guardianship 03/2015
407-3 State Subsidized (General Fund) Guardianship 10/2012
407-4 Title IV-E Guardianship Assistance Program- Subsidized Guardianship 03/2015
407-5 Planned Permanent Living Arrangement 12/2015
408-1 Foster Care: Independent Living Services 08/2016
408-2 Foster Care: Personal Information Packet 10/2007
408-3 Foster Care: Youth Employment 10/2007
408-4 Youth Credit Report Policy 07/2012
408-5 Substitute Care for Children in Foster Care: Supervised Independent Living Services 02/2013
409-1 Foster Care Review Committee 09/2014
409-2 Permanency Staffings 12/2015

Confidentiality, HIPAA & Case Records

501-1 Introduction – Confidentiality 10/2010
501-2 Definitions – Confidentiality and the Public Health Service Act 10/2011
501-3 Consequence of Violation of Department Policy on Confidentiality, HIPAA and the Public Health Service Act 10/2010
502-1 Case Records 10/2010
502-2 Supervisory Case Review 10/2010
502-3 Procedure for Disclosure and Governing Rules 02/2015
502-4 Procedure for Disclosure 11/2014
503-1 DPHHS HIPAA Database and CFSD Liaisons – Logging Authorizations, Specified Disclosures, Personal Representatives, PHI Amendments and Restrictions, and HIPAA-Related Employee Training 05/2015
504-1 Information Correction and Appeal Process 10/2007
505-1 Records Retention and Destruction 10/2007
506-1 Background Checks on Applicants, Employees and Volunteers 02/2015

CLICK HERE to see our new course on How To Fight For Your Child In Juvenile or Family Court

It will explain how to file motions into the Juvenile court and a lot more!

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

 

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 above that pertain to your situation and write those law numbers down. You will be needing them later in our course.