General Guidelines to the CPS process in Dependency Court.

GENERAL GUIDELINES OF THE CPS PROCESS IN DEPENDENCY COURT The following is a general guideline of how the procedures workwhen you accused of child abuse or neglect and you appear in civil court, rather than a criminal case. You may also be charged criminally, but the vast majority of cases are not criminal cases. Your agency may have minor variations due to different state laws. 1. Report is received. It may be anonymous or not. Hotline or intake worker decides whether or not to investigate. Between 65-80% of these cases are deemed unfounded right off the top and no investigation is conducted. STATE ACTION: States often require investigations to begin within 24 hours. This investigation may entail talking to teachers, neighbors, your children, and others before they ever approach you. The investigation may be closed after these contacts and you may never know you were investigated. YOUR ACTION: You should instruct your children to never speak with a caseworker or the police unless you are present. In cases where there is no obvious physical evidence of abuse where the children refuse to speak with law enforcement or CPS investigator invariably result in a closed case. CPS NEEDS the child to disclose anything, they can turn it into abuse or neglect. CPS agencies are mandated by law to conduct investigations into reports of child abuse HOWEVER you are NOT mandated to speak with them or give them access to your children. If your children are in school, the school will not prevent them from gaining access to your children. Your child will be taken to a private room, the door will be closed, and your child will be questioned. This questioning will not be recorded, but it should be. Give your children a copy of the Reverse Miranda card and instruct them in the use of the card. Your children must also be taught that if they are ever questioned against their will, that they MUST tell you that the questioning occurred as soon as they can. Instruct your children to immediately leave any room where they are being questioned–yes, your children have the right to get up and leave the room and call you on the phone immediately. They must refuse to allow anyone to strip search them or look at their bodies. They must tell the interrogators they want mom and dad present. Buy Knowing My Rules to teach them how to empower themselves when being questioned. (Available from www.profanejustice.org.) Most important, they must not answer any questions. Not even what their favorite flavor of ice cream is, or their pet’s name. Investigators can use this to coax the child to answer their questions. 2. If investigation is conducted, intake caseworker talks to child, and possibly parents, witnesses. Makes determination of founded, unfounded, substantiated or indicated as to child abuse or neglect and conducts a risk assessment which is designed gather evidence against you. May offer services or decide to take children and file petition for custody and file petition for D&N. Child is questioned again, maybe examined physically. COPYRIGHT NOTICE @ www.profanejustice.org - Copyright 1996- 2010, Suzanne Shell Page 1 of 6 STATE ACTION: The first time you know of a report of child abuse/neglect against you is usually after the caseworker has questioned everyone else and has arrived at her conclusion. She will often simply appear at your doorstep, often with armed law enforcement officers. In a case involving domestic violence accusations, you may be confronted by an entire team of caseworkers, police, victim advocates, etc. all wearing bulletproof vests and carrying firearms. They probably don’t have a warrant or court order. Caseworkers have been known to state that the police officer is her warrant. Officers have coerced entry by stating that they don’t need a warrant. You waive your rights when you are intimidated into complying, since they aren’t forcing their way into your home. Don’t let them in. They want to speak to your children, and examine your house for evidence to use against you. The want to get their hands on your children. Once they are in your house, you will not be allowed out of their sight, you will not be allowed to make phone calls, you will not be allowed to coach your children or be with them during their strip searches and questioning. YOUR ACTION: You don’t have to allow them entry to your house without proper legal documents. Shut the door, make them use force, don’t give them any permission to enter. This will give you grounds to sue them. Have your tape recorder and video camera running. For more details on how to enforce this, buy Profane Justice by Suzanne Shell. STATE RESPONSE: The caseworker will attempt to call the court for a verbal court order, often stating that you are not cooperating. She will probably get it, and it will probably be timestamped to look like she got it before she tried to get into your house. YOUR ACTION: You are NOT required by any law to cooperate and they cannot legally seize your children based on this alone. By this time, you can presume she will be back to force you to turn over your children, and you may only have a few minutes. If the officials leave, you can get the children out of the house. If not, immediately video or audio tape the children’s statements about whether they reported abuse when they were questioned in school, get their feelings and comments on tape. Call your friends and advocates to witness the removal of your children. They must bring their cameras and tape recorders. They cannot obstruct the removal of your children without risking arrest, but they can get it all on tape. They must be observers, and not interfere. Call your attorney. You may instruct your children to refuse or resist being taken if they don’t want to go. Instruct them to only tell the truth, and not to trust any promises made by these people. Teach them that anyone who tries to make them lie is not to be trusted, and that the truth is the only thing that will protect them and their family. Tell them they will get to visit with you and you will want to know if anyone is trying to make them lie during those visits. Tell them to write you letters and they can sneak them to you at the visits, these letters must be secret. Assure them of your love for them and that you will fight for their return. If you decide to let them in your home, you can insist that only the police officer come in. In any event, you absolutely must have a video camera going, to document everything. Otherwise they can accuse you of resisting, obstructing or posing a danger. I you decide to allow them in, it is best to have other witnesses present, each with their own video or audio recorders running. COPYRIGHT NOTICE @ www.profanejustice.org - Copyright 1996- 2010, Suzanne Shell Page 2 of 6 STATE ACTION: They must tell you what you are accused of. They will try to avoid telling you, but if they don’t, you can reasonably presume they don’t know what it is yet, and need time to build the case against you. This means they are removing the children without a legally justified reason. YOUR ACTION: Gather your evidence to disprove the allegations in preparation for the temporary custody hearing that will occur within 48 to 72 hours. STATE ACTION: You may be offered services on a voluntary basis in exchange for being allowed to keep your children. The effectiveness of these services is debatable. They are often simply a mechanism to maintain oversight and to obtain evidence to support a future petition. If only one parent is the offender, the state must (but probably won’t) request the offender leave the home so that the children can stay in the home. YOUR ACTION: If they don’t have enough evidence to file a petition, it will rarely be in your family’s best interests to allow the state to interfere with your family. You may refuse. They may try to file a petition or take your children at this point. Accepting their services is no guarantee that you will be allowed to keep your children and the services may actually undermine your effectiveness as your children’s parent. These services are actually a fishing expedition to gather as much information to use against you as possible. If they offer to leave the children in exchange for the offender leaving the home, agree. Do not allow the offender back in the home until the issue is resolved. If they don’t offer, you should. If they refuse, you can argue they failed to offer appropriate services before removing the children. 3. Parents appear at temporary custody hearing. Attorney for CPS gives your attorney a copy of petition for the first time (violation of rules of procedure - your attorney must demand a continuance to prepare a response.) Demand a contested hearing. NEVER allow the shelter hearing to occur uncontested. STATE ACTION: You will probably see the nature and extent of the allegations against you for the first time at this hearing. The state will request custody or supervision over children. They desire you to agree to their keeping custody of the children. They want this hearing to last only 5 minutes or so. YOUR ACTION: This is your first opportunity in court to shut this case down. You and your attorney are allowed by court rules to have time to review and respond to the petition. You need this time to gather evidence, demand discovery and subpoena witnesses. This is the MOST IMPORTANT time to contest the state action - it could mean the difference between shutting down the case and facing termination of parental rights down the road. You cannot present an adequate defense without knowing what the exact allegations and evidence are against you. Request a continuance (48 hours) to gather your evidence and subpoena witnesses. You have the right to present your evidence that the allegations in the petition are false, and the court’s desire COPYRIGHT NOTICE @ www.profanejustice.org - Copyright 1996- 2010, Suzanne Shell Page 3 of 6 to expedite the hearing or save money does not override those rights. 4. Court may rule: a. Return child, close case b. Return child, investigate case, schedule D&N hearing, impose court orders on parents. c. Keep child, investigate case, schedule D&N hearing, schedule visits, order psychological evaluations (object this), drug evaluations, etc. (all evidence gathering tools, attorney must object, you must not cooperate) STATE ACTION: The state will request interim services such as supervised visits, psychological evaluation, no contact, signing releases, etc. These are designed to pressure you into waiving your rights and stipulating and to gather evidence to use against you at the adjudicatory hearing. YOUR ACTION: At this point of the process, you still do not have to cooperate. Don’t give them anything to use against you. If you refuse to cooperate with their investigation, they may try to keep the children isolated from you. This is the period of time when they attempt to elicit accusations from the children, even false ones. Reasonable efforts mandates you have the right to visit your children during this interim and you should insist on frequent and liberal visitation. 5. Possible mediation to arrive at a compromise agreement. You won’t be happy with it because it leaves the door open to further unwanted services. I recommend that if you did not abuse or neglect your child, you demand an adjudicatory hearing. This preserves your right to appeal. STATE ACTION: Mediation is actually used to persuade the parents to agree to services through compromise. Mediation is a compromise tool, not a justice tool. The state will use stacked allegations, falsified facts, etc. in order to scare you into arriving at a compromise. YOUR ACTION: It is very helpful if you can arrive at a mediation armed with facts pertaining to state violations during their investigation, etc. Make sure your attorney has already filed the appropriate motions in court exposing unethical or illegal practices by the state agents. Examples can be Motion for Contempt of Court if DHS violated any court orders, requests for sanctions for failure to disclose discovery, administrative complaints against parties acting outside their scope of authority, etc. If you have evidence of DHS and providers attempting to tamper with the child witnesses, or tampering with evidence, you can request the DA to file charges and notify the court in writing of those acts. While it is unlikely that these people will be prosecuted for those illegal acts, it will establish a record for future civil complaints. 6. Adjudication hearing. Court may decide COPYRIGHT NOTICE @ www.profanejustice.org - Copyright 1996- 2010, Suzanne Shell Page 4 of 6 a. Child is not abused or neglected, case closed, CPS is out of your life. But you are on their radar, most people do not win these cases. b. Only one parent abused/neglected child, send child home with innocent parent, imposes services on guilty parent. (Dream on, they can’t do this and get their funding, they have to nail BOTH parents.) c. Parents admit guilt, court imposes services (If you fail these services, the court must terminate your parental rights. Parents are set up to fail these services over 75% of the time.) d. Court trial finds parents abused/neglected child, imposes services. (Ditto) STATE ACTION: State will violate all procedural rules regarding treatment plans. YOUR ACTION: You must know law and policy pertaining to treatment plans and make every effort to insure the state agents comply. Document, document, document. Get ongoing admissions that you are in compliance and get it on tape and in writing. More details on this is published at www.profanejustice.org online documents pages. 7. Periodic reviews of parent’s compliance with case, usually at six months and twelve months. STATE ACTION: CPS submits report to court detailing status of case, compliance of parents, family history and condition of children in state care. YOUR ACTION: Respond to that report in writing, file with the court. Document CPS failures to comply with treatment plan, failures to comply with law and policy. Attach your evidence documenting your compliance and success with treatment plan. Request contested hearing. Request return of children. Work behind the scenes to negotiate the return of the children so that when the next hearing occurs, CPS will recommend that the children be returned. 8. Twelve months, permanency hearing, CPS files for termination of parental rights because: a. Parents failed to complete treatment plan b. Treatment plan failed to rehabilitate parents c. Child in foster care 15 of the past 22 months NOTE: IF PARENTS ADMIT GUILT (#6c), THE STATE DOES NOT HAVE TO PROVE THE CHILD WAS EVER ABUSED OR NEGLECTED IN ORDER TO TERMINATE PARENTAL RIGHTS. COPYRIGHT NOTICE @ www.profanejustice.org - Copyright 1996- 2010, Suzanne Shell Page 5 of 6 9. Termination of Parental Rights hearing. Court may decide: a. Terminate parental rights. b. Extend treatment plan, give parents another chance to finish (rare). c. Deny termination petition, keep child in permanent state custody (usually for older children who are deemed unadoptable.) d. Deny termination petition, order reunification (may take six to twelve months or longer since snatching a child from his foster parents without gradually introducing him back to his biological family will be ‘emotionally traumatic’ to the child.) No matter where you are in your case, put all requirements, instructions to caseworkers and agreements in writing. If you don’t get it in writing, it’s not valid. They’ll deny they ever made the agreement. Get it in writing. This is just a very brief overview of the process and some very basic recommendations for parents to take. More detailed information is available through our other publications at http://www.profanejustice.org COPYRIGHT NOTICE @ www.profanejustice.org - Copyright 1996- 2010, Suzanne Shell Page 6 of 6