Substantiated Child Protective Services (CPS) cases are determined by CPS- not the remedial (family or juvenile) courts. There are many substantiated CPS cases that never see the inside of a court room. How is this possible?
The remedial courts in the context of CPS cases exist to enforce compliance with CPS mandates and in cases where the child(ren) are removed and placed in foster care, kinship care or an institutional setting, when or if it is safe for the child(ren) to be returned; they do not rule on whether or not abuse or neglect occurred. That is judged by CPS based on the information they obtain during their own investigation and is independent of any law enforcement or legal involvement. The standard of evidence used varies by state, but whether that burden of proof is met rests solely with the assigned CPS investigator and his or her superior(s).
Consequences of a substantiated case include your name being placed on a registry for a predetermined period of time (it varies by state and could be as little as 10 years and as long as 10 years after your youngest child turns 18 years of age). This registry is searchable for the purpose of child abuse/neglect background checks (usually required for those in professions involving caring for children such as school staff, child care workers, pediatric medical and mental health professionals and others who work directly with children). If you are placed on this registry, you cannot legally work in a profession that serves children.
When a case is substantiated, CPS must ensure that the safety concerns identified have been sufficiently addressed as CPS defines them. This means that you will likely receive recommendations for services and resources. These services can include prevention services or community-based services such as psychotherapy, case management, parent education, domestic violence counseling, vocational counseling, life skills training and more. While you are within your right to refuse or find your own equivalent alternative, if you refuse, CPS may take you to court to force your compliance and, in our experience, that threat can be legitimate. At Heartwork Defense, we recommend finding your own alternative not connected to CPS- whether it’s free, covered by your insurance or paid out of pocket.
Recourse for such substantiated cases isn’t much. All states have some form of an appeal process and a limited timeframe in which to pursue it. If CPS did not follow its own policies and practices, this is the critical time to point it out. At Heartwork Defense, we’ve seen cases overturned in some states for something as simple as not providing a written notice of the determination reached on the allegations. Because this appeal process is handled outside of court, legal counsel is not required to be offered to you. However, if you have your own legal counsel or an advocate, you may bring them with you to this hearing.
If you are the victim of a malicious report (known as a report made in bad faith), you may file a police report. Reports made in bad faith to CPS are illegal in every state. However, you must be certain you know the identity of the reporter (CPS is forbidden by law in every state to tell you who reported you to CPS). If you are wrong about the identity of the reporter, you may not be taken seriously on a second attempt. You will also need to have a substantial amount of evidence to prove it, which may include text messages, e-mails, social media posts, handwritten or typed letters and audio or video recordings (if you use audio or video recordings and you live in a state where two-party consent is required to record, make sure you have obtained consent before you use it).
Unfortunately, recourse is very scarce in such cases and often, families get stuck with substantiated cases due to nothing more than minor safety concern(s) identified by CPS. When the consequences to CPS are almost non-existent if they overreact, they are very severe if they don’t do enough and a child is found later to be severely abused or dies, CPS is more likely than not to take action in cases where any safety concerns at all are identified. The court does offer additional protections to alleged subjects, but the are still limited and at a cost of more invasive CPS involvement. In addition, many court-appointed attorneys have so many families on their caseload that they often don’t have the time to devote to providing them with a proper defense. Therefore, if you cannot afford to pay for your own counsel, court can be especially risky. In fact, the alternative response offered in some states, which relies heavily on prevention services, is moving toward circumventing investigation determinations and court altogether for using in-home prevention services provided by non-profit contractors on behalf of CPS or by CPS themselves and the mere threat of a traditional investigation to force compliance.