Most of the general public knows that when they see the flashing lights of a police car in their rearview mirror, regardless of how they feel about the situation, they need to pull over and have a civil interaction. Most people also know that if they do not their current situation is about to become a whole lot worse. Unfortunately, for many families around the country, there isn’t a “flashing lights” equivalent understanding of what happens when a Child Protective Services (CPS) worker knocks on their door demanding to enter their home, speak with children, and interview parents about what are often surprise allegations. The area of dependency law can be confusing terrain for even seasoned practitioners of family law. This article aims to help guide family law practitioners through the maze of dependency law armed with some helpful tools.
The family law attorney dragged into a CPS investigation heading to court is in a unique position to extend a baton forward to the next attorney—like a relay race—working towards helping the client. Understanding the general policies and duties of CPS investigators will help you leave behind potential future exhibits for other attorneys to find in discovery. Timelines, alternative explanations for injuries, and polygraph results have also been helpful at getting CPS to move away from an allegation of abuse or neglect. The emails from family law attorneys and the responses (or lack thereof) have been key exhibits in having children returned home at the emergency shelter care hearings. Sadly, many family law spillover cases typically come into the CPS arena on the eve of a court-ordered placement change from one parent to another.
The following are some guidelines to keep in mind when dealing with CPS:
One helpful lens to put on dealing with CPS is to remember that the top priority of CPS is the protection and preservation of the CPS agency itself. If CPS as an agency is confronted with circumstances in which a private choice has to be made between child safety and protecting CPS from legal liability, the agency will always protect itself. You need only to google “CPS abuse lawsuit in ___” and insert your local jurisdiction to read local examples of this rarely spoken of reality.
A family that slams the door in the face of a CPS investigator on the advice of a YouTuber can typically expect that same investigator will try and come back with law enforcement in an attempt to bolster their authority or their “perceived authority” in dealing with a family.
The concept of perceived authority is crucial to be aware of when dealing with CPS. I’ve heard it best described by a former social worker who recalled his CPS instructor putting it this way: “You don’t have as much authority as you think you do, but unless they know it, you have it.”
You can’t stop a CPS investigation from occurring. Even celebrities like Brad Pitt have to sit through a CPS investigation, and, as infuriating as it is for many parents, CPS workers do not need parental permission to interview children. Always keep in mind that
How our clients interact with CPS makes a huge difference towards the outcome of their case or future cases. As attorneys, we also have a responsibility to help validate our client’s anger and frustrations while helping them navigate a scary and emotionally charged investigation in a way that doesn’t shoot themselves in the foot. Just as a police officer can claim that they were in “fear” for their personal safety, a CPS investigator can also make similar claims and seek to escalate the situation with law enforcement or by going to court. Setting expectations and a clear understanding of the visible and hidden powers of CPS goes a long way towards helping keep families safely together and out of the child welfare system. Whenever an upcoming meeting or interaction is occurring with CPS, I try to counsel my clients as follows:
Take some deep breaths and remember that it’s okay to yell and be angry with me about this allegation, but let’s not and hand them more ammunition to use against you. Let me throw the punches. If I’m pressing the investigator, that makes me good at my job, but if you’re doing it, it makes the situation worse because now you’re the “angry parent.”
If I’m not available to join a call for an unannounced home visit or an investigator showing up at your home to see a child, instead of allowing them in, bring your child to the front door for them to see and do a quick visual check. Tell the CPS investigator, “I’m happy to cooperate with you, but my attorney has asked to be present for all our communications.”
CPS investigators have access to all kinds of records that you may not be aware of and will ask you questions they already know the answers to as a test. You should assume that they have access to any criminal history, family law court documents, hospital records, or police reports related to the address of the parent and interviews with neighbors or referents.
If a parent slams the door on a CPS investigator at any point during the investigation, the agency can decide to file a case and will go to the court ex parte and claim that the child or children are at risk of harm, that the parent(s) have been uncooperative, and that an assessment of safety cannot be done without removing the children. CPS may also claim that the parents may be attempting to abscond with the child(ren) since they aren’t cooperating. These petitions are overwhelmingly approved in my jurisdiction when such claims are made, and there is little accountability for CPS workers who exaggerate or make false claims in their petitions.
Typically, CPS holds a family team decision-making meeting or something similar before a formal decision is made to place a child out of their parents’ home. Many people don’t know that this meeting is a golden opportunity to invite as many family supports and friends as possible. Since COVID, many of these meetings have changed from being in person at the department offices, to being conducted via Zoom. These meetings are a critical opportunity for families to present a “safe” plan to the department and change the direction of the entire investigation. If a parent is able to show up at this meeting with a group of supportive family and friends who are willing to act as safety plan participants, the impact can be tremendous. The following are some examples of circumstances that have accelerated a CPS case closure:
Ensure your client knows that being rude or antagonistic to the CPS investigator will never help the situation for your client and, if anything, will trigger the need for the investigator to “flex” their authority in response.
Independent private polygraph testing is not admissible in court, but, during the investigation phase, polygraph testing has frequently been used to jointly counter CPS and active law enforcement investigations. Generally, CPS should not be aware that the polygraph test is occurring until you’re satisfied with the result and have asked for a report to be generated by a qualified independent provider of your choice.
Depending on the allegations being made, creating and offering up an independent family-driven safety plan to CPS to have people move out or into the home can alleviate CPS’ concern about a safety threat. Parents do not have to wait for CPS’ proposed plan to offer up their own safety plan.
Especially in cases in which there is an active family law matter that has gone nuclear with CPS allegations, providing a timeline with context of what is occurring in the parallel family law action can be greatly helpful.
Investigate the possibility of any Native American heritage for your client, which triggers CPS to provide “active efforts” versus “reasonable efforts” to prevent or eliminate the need for removal and breakup of the family unit. The child’s eligibility for enrollment in a federally recognized tribe should be looked into, and it always helps to proactively reach out to the tribe’s Indian Child Welfare Act unit to learn about what resources or help they may be willing to offer or provide.
Document and memorialize everything. If you’ve had a call or visit with CPS, memorialize that with an email confirming what you took from the conversation and what your understanding is while the event is still fresh in your memory. Save all messages, photos, and communications and screenshot them as a backup just in case. It is not uncommon for a CPS investigator to fail to include materials from you or your client in the case file claiming they never received it.
In cases where medical child abuse is being alleged, your client has a right to an independent second opinion about their child’s physical and emotional condition. Medical providers have frequently confused birthmarks such as Mongolian spots for bruising and birth-related injuries for “non accidental trauma.” Having a medical expert provide an independent opinion is crucial in these cases, and your clients need to request the full medical records for their child(ren) to provide to the expert before they potentially lose access to those records. Certain hospitals who make referrals to CPS have been known to revoke access to medical records for parents during the investigation phase.
Always give notice in writing that you intend to send collateral information related to the investigation before the caseworker closes their file.
An increasingly alarming practice known as the “shadow foster care system” has emerged where families (typically under the threat of foster care) agree to enter an unregulated system with no court-appointed attorneys, no federal laws governing the practice, and an arrangement that typically is more convenient to the caseworker than the family. Often families who are under the lens of CPS investigation are offered the route of signing a voluntary placement agreement (VPA) or safety plans with “kinship diversion” or “voluntary kinship placements,” as they are known in other states, where the parent agrees to an out-of-home placement with a relative or approved person. These agreements can be for up to three months with parents having the ability to revoke a VPA after it is signed. Revoking a VPA can lead to either a meeting with CPS in which further planning occurs or directly to court action.
When a CPS caseworker and their supervisor(s) arrive at a decision that a child cannot be safe with either parent and services cannot be put into the home to alleviate the safety risk, they file a petition in court to begin the dependency process. The parent is then entitled to an attorney (if indigent) and thecourt then makes findings as to whether or not the department provided “reasonable efforts” to prevent or eliminate the need for removal and separation of the family.
At these emergency hearings, which are known by different terms in different states, the parents have rights. Among them, to call witnesses and present evidence to the court, including a full questioning of the investigator and a reasonable opportunity to review the discovery provided by the department. This due process only occurs, however, when the department actually proceeds to the courthouse to file their case.
The urgency to line up alternative viable options for placement, resources, and support can make all the difference in a CPS investigation. Parents have the right to decide what is best for their own families without government intrusion and intervention, so waiting for CPS to come up with a plan can put your client at a disadvantage. Some of the best resolutions in court have occurred when I’m able to use the evidence provided by the family law attorney during the investigation to show the presence of confirmation bias and a poor investigation. Steve Jobs famously said, “You can only connect the dots looking backwards.” As attorneys interacting with CPS, you shouldn’t miss an opportunity to lay down dots for future attorneys to connect at a later date.
