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Though I am taking a hiatus from my practice at the time of this blog post, I received a phone call today that was exactly like hundreds of others that I’ve received over the years. The caller asked me: “CPS (Child Protective Services) left a card on my door with instructions to call them. What should I do?” This is one of the easiest questions that I receive in my practice, yet I am continually amazed at how many other attorneys, including some of the most senior and experienced family lawyers, put their clients in peril with the wrong answer. Here, I will explain what to do when a social worker comes to your door to investigate an allegation of child abuse and/or neglect, and why the only legally rational option is to say nothing and refuse to cooperate.
CPS CAN TAKE YOUR CHILDREN
Child Protective Services (“CPS”) goes by many names – “Department of Children and Family Services” (“DCFS”), Department of Children and Family” (“DCF”), “Department of Social Services” (“DSS”) are other common names, but they all serve the same function and I will refer to them here as “CPS”. CPS’s function is to investigate allegations of child abuse and neglect. Upon finding that child abuse and neglect has actually occurred, it will intervene. Intervention may include forcibly removing the child from their home and placing them in the care of a foster family.
WHAT A CPS INVESTIGATION LOOKS LIKE
CPS is mandated by law to open an investigation any time someone makes an allegation of child abuse or neglect. An investigation will open even if the allegation is made anonymously, based on hearsay, based upon speculation, and even if it is uncorroborated.
In most cases, after collecting the initial information, CPS will send a social worker to the home or school of the child to contact the child and his or her parents. For parents being contacted, this is the most crucial moment in their case. The Social Worker will make observations and take information if it is offered. The investigation may also involve talking to third parties or asking the parents to submit themselves or their child for further evaluation. When the investigation is completed, CPS will opine that the allegation of abuse or neglect is either “unfounded”, “founded”, or “inconclusive”. If the allegation is deemed “unfounded” or “inconclusive”, the case is closed. If the allegation is deemed “founded”, the case can then evolve to the “prosecution” stage, which involves the County’s attorneys pursuing court action that may include removing the child from their home.
THE FUNCTION OF AN INVESTIGATION IS TO COLLECT EVIDENCE THAT CAN BE USED AGAINST YOU.
Unlike criminal matters in which you are generally entitled to a jury and require proof of guilt beyond a reasonable doubt before conviction, there are no juries in juvenile dependency cases (CPS cases) and the standard of proof is “a preponderance of the evidence” – in plain English, for the County attorneys to win, a Judge (or other judicial officer) only needs to be persuaded that it’s slightly more likely than not that the allegations are true. However, the case is still the County’s burden to prove, so the function of the Social Worker investigation is to collect evidence that can be used against you if the decision to take court action is made.
Because the burden of proof is relatively low, and because the County does not have to contend with the skepticism of a jury of peers, Social Workers are trained to collect evidence in a way that relies heavily, if not solely, on their perceptions and impressions, rather than objective facts.
For example, Social Workers are trained to not allow any interview with the parent or child to be audio or video recorded, instead relying on handwritten notes. The reason for this is that an audio or video recording can be used to undermine the Social Worker’s subjective impressions and recollections in court. Without such a recording, what a suspect says or does, or the manner in which they say or do things, becomes a dispute of fact between the word of the trained, (presumably) unbiased County investigator who has nothing to gain by lying and the word of the (allegedly) violent/drug-addicted/neglectful/abusive parent.
This is not to say that a Social Worker is trying to prove every allegation to be true, but the Social Worker certainly wants to be able to prove true every allegation that he or she, in their subjective belief, concludes should be sustained.
TALKING TO CPS HELPS THEM BUILD A CASE AGAINST YOU – EVEN IF YOU ARE INNOCENT
Participating in a CPS investigation is always voluntary, yet people still cooperate for many reasons. In every instance, cooperating is a mistake.
1. “I have nothing to hide.”
One reason people sometimes choose to cooperate is a belief that the they “have nothing to hide.” I’ll explain why this is a mistake using a (slightly oversimplified) hypothetical example:
A Social Worker receives an anonymous tip that you hit your 4 year-old child, leaving a bruise. The Social Worker shows up at your door and asks if they can come in to speak with you. You agree. You sit them in your kitchen where you just finished cooking breakfast and she tells you point-blank that they’re here to investigate the safety of your child. You are shocked. You firmly assure the Social Worker that you don’t know why anyone would think that your abuse your child – you spanked your child once when they tried to put a fork into an electrical outlet, but that was pretty much the only time that you ever laid hands on your child. The Social Worker points out that she merely said that she was there to investigate the safety of your child – she didn’t say anything about you laying hands on your child – and asks why you would assume that’s what she meant. You answer the truth – that it is because you thought that’s the sort of thing that they investigate and that’s what you thought she meant. The Social Worker asks if your child has any marks on them right now, and you say “no”, believing that to be the case. The Social Worker asks if she may examine your child, and you consent. Upon examination, the Social Worker observes bruises on your child’s shin, forearm, and thigh that she got during play.
Because you let the Social Worker into your home, answered her questions, and cooperated with her investigation, the Social Worker makes the following notes: (1) parent invited me into kitchen area, which was messy and unsanitary. dirty plates on table, sink full. (2) parent spontaneously admitted to hitting child. when asked why, parent became defensive and falsely stated that Social Worker asked about it. (3) parent admitted 4 y.o. child had access to open electrical outlet while in her care and was in danger of self-electrocution. (4) Parent denied present bruising on child despite obvious bruising on multiple body locations, including suspicious bruise on thigh.
Note that your cooperation carried no weight and was irrelevant to the outcome of the investigation.
If the case goes to court, what happened will be your word against the Social Worker’s, and the court only needs to decide who is more credible. Everything that happened at that meeting can and will be used against you. Had you simply refused to talk to the Social Worker, none of those impressions would have ever been recorded or used against you in court.
2. “They said that they would get a warrant if I didn’t let them in.”
Social Workers are trained to get the information that they want, and they are trained to lie to you to get it. One of the more common tactics is for the Social Worker to threaten that they will get a warrant if you do not give them the information that they want. It’s almost a guarantee that they will make this threat, but their threat does not change anything.
First, warrants are issued by courts and require a showing of proof (some actions require a “prima facie” showing of evidence, while others require “probable cause”). This puts CPS in a catch-22 situation: they need sufficient proof to get a warrant, but they can’t get a warrant without sufficient proof. For this reason, the threat is oftentimes empty, but they count on the fact that you don’t know that it’s empty.
Second, even if they get a warrant, it’s not going to give them any information that they’re not asking from you anyway, so there’s literally nothing to gain by cooperation. Depending on what proof they already have, they might still get the information via a warrant if you turn them away, but if you cooperate, they’ll definitely get the information. Why make their job of collecting evidence that can be used against you easier?
3. “Refusing to cooperate will look bad.”
Although CPS investigates allegations of child abuse and neglect, and although they are entitled to their opinions and perceptions, they know that it’s the court that ultimately decides whether an order will be levied against you. They keep this in mind and will not file a case in court unless they believe that they have sufficient evidence to prove that you are dangerous to your child.
A CPS investigation should be regarded as the first stage of a legal proceeding, and the goal is to keep them from collecting evidence that will be used against you in court. Whether they think you are a friendly and cooperative person to their face is irrelevant to the question of whether they think you have been abusive or neglectful to your children. It’s better for you that they suspect you are abusive or negligent but not be able to prove it than for them to perceive you as cooperative but conclude that they can prove neglect or abuse.
It’s also noteworthy that refusing to talk to CPS is not competent evidence regarding whether a parent is neglectful or abusive to their child. The court will not consider refusal to talk to the investigator as evidence against them when determining if an allegation is true.
CONCLUSION
It should be noted here that CPS cases are prosecuted in the “juvenile dependency” courts, which operate under a very different set of rules and laws than the family courts. In my experience, there are very few private attorneys that practice juvenile dependency law, and even fewer that are skilled at it. Many family law attorneys will erroneously advise their clients to “just play nice” with CPS during an investigation, even when that same attorney acknowledges that they lack the expertise to represent the client if their case is prosecuted in the juvenile dependency court. When seeking advice or representation during a case involving CPS, make sure that your attorney has significant training and experience in juvenile dependency matters. If your attorney has advised you to “just play nice” during a CPS investigation, show them this blog and ask what you have to gain by allowing CPS to potentially build a case against you. Follow the links below to watch my videos and subscribe to my YouTube channel for more information.
