So Child Protection Services Has Been Called Against You. What now?

The History: CAPTA

Many parents lack awareness of CPS and their role in investigating reports of child abuse and neglect. To understand the nature of their investigation, you should first understand where the allegation likely came from and why it was likely reported.

Sixty percent of all reports made to CPS are not made by lay persons with a personal relationship to the family but instead are made by career professionals, such as a child’s teacher, doctor, therapist or child care provider.[1] That is because these professions are mandated reporters under the law. Most mandated reporter laws in the United States were enacted in response to the Child Abuse Prevention and Treatment Act (CAPTA).

CAPTA was signed into law by President Jimmy Carter in 1974 with the goal of making children safer by preventing abuse and neglect. One of the ways the law sought to do so was by making professions that were likely to witness child abuse or neglect mandated reporters.[2] Mandated reporter professions include:

· Social workers

· Health-care professionals

· Teachers

· Child care providers

· Law enforcement[3]

As a result of CAPTA’s mandated reporter laws, these professionals were transformed into agents of the state in the child protection context. That means anytime a parent encounters a mandated reporter, they are essentially under state surveillance, no matter how friendly or how casual the interaction is. Each mandated reporter understands their career is on the line if even a suspicion of child abuse or neglect goes unreported. It is necessary therefore for parents to be measured at all times in divulging any information or in physically or verbally disciplining their child in the presence of a mandated reporter.

It is also essential to know the laws in your state. In New Jersey, for example, it’s not just certain professions that are mandated reporters but all New Jersey residents are considered mandated reporters under the law. This requires heightened awareness for the parent of their surroundings and what actions may be highly scrutinized in certain settings.

The Investigation

CPS is legally obligated to investigate every call of abuse or neglect on a child, no matter how implausible the accusation may be. CPS investigations typically begin within 24 hours of a CPS caseworker receiving a report of abuse or neglect. During this time caseworkers are tasked with conducting safety assessments to decide whether to assign the case for an investigation or dismiss it. In conducting a safety assessment, caseworkers are considering the following:

· Is the child currently in danger?

· Is the child safe in the home without further involvement?

· Should the case be moved to community partners?

· Are home-based services necessary to protect the child?

· Does the child need to be placed in out-of-home care?

Once a case is screened and assigned, the investigating caseworker will usually schedule interviews with the relevant parties and any examinations if necessary. Typically, the first interview that is conducted is with the child's parent(s) or caretaker(s), usually during a home visit. [4]

Your Rights

It is important to remember during a CPS investigation that you as the parent have constitutional rights that should be asserted if necessary. The most relevant of these are:

The Right to Remain Silent - The right to remain silent is not exclusive to criminal law, but also applies to child protection investigations. While it is not recommended that a parent or caretaker outright refuse communication with CPS caseworkers, you are under no obligation to divulge information not pertinent to the CPS investigation or which may implicate you in any perceived wrongdoing.

In addition, do not offer information to the CPS caseworker that is not requested. No matter how kind or non-threatening a caseworker may present themselves, remind yourself that they are an agent of the state and you have the right to remain silent.

You also have the right to consult a family law or child protection attorney to advise you on your course of action during a CPS investigation. If you desire to consult an attorney but are of limited means, try to locate pro-bono or low-bono (low-cost) legal services in your state, such as free legal advice call lines, legal services organizations or law school legal clinics.

Even though you have the right to remain silent, know that a CPS worker can talk to your child without your permission, for example by visiting the child at school. A physical examination of your child, however, is to be highly scrutinized except in extreme circumstances.

The Right Against Illegal Searches or Seizures - If the report made to CPS is about the child’s safety, it is likely the CPS worker will want to do an inspection of your home. You have a right against unreasonable searches and seizures from agents of the state, including CPS. Thus, in the initial investigation, you are not required to let CPS into your home. The exception is if it is reasonably perceived by the CPS caseworker or law enforcement that a child is in imminent danger of physical harm, and it is reasonably believed that immediate action is necessary to prevent that harm. In that case scenario, no warrant is required, and the CPS caseworker or law enforcement officer may forcibly enter your home.

Just because you have the right to refuse a home search during the initial CPS investigation does not mean it is always wise to do so. Very often, depending on the allegations, a refusal to allow a search of your home may trigger the caseworker to seek a court order to enter your home. Thus, to proceed quickly and smoothly, it may be in your best interest to comply with the CPS caseworker and allow a home visit.

Consenting to a CPS caseworker entering your home does not mean you automatically consent to every aspect of the investigation. If you perceive the caseworker is going beyond your original consent, make it clear you do not consent to them going further. Even after allowing CPS into your home, you may ask them to leave at anytime. [5]

After the Investigation

Once the investigation has concluded the caseworker must make a determination whether or not there is evidence of abuse or neglect. If there is insufficient evidence the caseworker will usually close the case and the case records will be sealed. However, if the caseworker does find sufficient evidence for abuse or neglect, usually one of the following actions will be commenced:

1. Creation of a Safety Plan: Typically CPS caseworkers will attempt to avoid litigation by offering services to the family to remediate any concerns of abuse or neglect. These services are known as reasonable efforts, and include services such as psychiatric counseling, group therapy, parenting support, and drug or alcohol rehabilitative services.[6] By complying with these services, you may avoid litigation being brought into court.

2. Litigation: The attorney for the state may file a formal complaint in court to compel a parent to comply with services. In such cases, the court will oversee the case and may take more drastic actions, such as a child removal, if the parent(s) or caretaker(s) fail to alleviate the court’s safety concerns.

3. Child Removal: If CPS determines that there are no reasonable efforts that can keep your child safe in your home, CPS through their attorney will file a compaint to take custody of your child. Removal may also commence if CPS determines that your child is in immediate danger, even before getting a court order. Following an emergency removal, a removal hearing will usually be heard in court within 48 hours of the removal.[7]

[1] Nancy Guardia, The Imprint, (Feb. 27, 2017) https://imprintnews.org/opinion/response-claim-call-minimal-accountability-child-welfare/25077.

[2] Mical Raz, Why Mandatory Reporting Doesn’t Keep Children Safe, Time Magazine, (Jan. 31, 2024) https://time.com/6589854/mandatory-reporting-child-abuse-prevention/

[3][3] Child Welfare Information Gateway, Mandated Reporting, https://www.childwelfare.gov/topics/safety-and-risk/mandated-reporting/(last visited July 9, 2024)

[4] Christopher Coble, What Happens When CPS Is Called?, Find Law, (last updated Mar. 21, 2019) https://www.findlaw.com/legalblogs/law-and-life/what-happens-when-cps-is-called/

[5] BSS Law, LLC, What to Do when Child Protective Services Calls You, (Jan. 21, 2022) https://www.bsslawllc.com/blog/2022/01/what-to-do-when-child-protective-services-calls-you/

[6]Compliance with these services should be undertaken, it is not uncommon for the state to file formal litigation if such services fail to resolve the initial concerns.

[7] Christopher Coble, What Happens When CPS Is Called?, Find Law, (last updated Mar. 21, 2019) https://www.findlaw.com/legalblogs/law-and-life/what-happens-when-cps-is-called/