Both in CPS investigations and the family and juvenile court, all allegations or accusations are determined or adjudicated based on an evidentiary standard, or standard of evidence. The one Americans are most familiar with is the reasonable doubt standard, which is used in criminal court in the United States and is where we get the ‘beyond a reasonable doubt’ phrase. This is not the standard used to determine child welfare investigations, nor the standard used in the family and juvenile courts for adjudication. A lower standard, known as the preponderance of the evidence standard, is used by majority of state and municipal child welfare agencies and is almost universally mirrored by the family and juvenile courts in most adjudications they handle.
The burden of proof is met in the preponderance of the evidence standard if the evidence suggests the allegation(s) are more likely than not to be true; put another way, the burden of proof is met if the evidence suggests the allegation(s) are at least 50.01% likely to be true. If the burden of proof is met, the allegation(s) will be substantiated; if not, they will be unsubstantiated. This makes it harder to prove a negative- that the allegations of child maltreatment are not true.
Because the subject matter the family and juvenile courts deal with typically contain a strong element of subjectivity, it’s not always easy to tell what constitutes a preponderance of the evidence and there’s plenty of contradictory precedent that make interpretation even more confusing. There are more obvious case examples, such as where there’s a sexual abuse allegation, the DNA evidence to prove it has been collected and the child corroborates the DNA evidence, there’s not much doubt it’ll be substantiated. However, you could have a single parent who lost his or her food stamps and therefore, didn’t have enough food in the home for a full meal and her child(ren) were underweight when a report was made to CPS. If the children really weren’t getting enough food (regardless of the reason why), there is visual evidence, first-hand accounts and likely medical documentation, it’s not unreasonable to assume it would likely be substantiated. However, if the children are otherwise healthy, there are no signs of malnutrition and the parents are in the process of getting the food stamp benefits restored and it’s been a week since they picked up food from the food pantry, it entirely depends on how the CPS investigator interprets it and what he or she is aware of in terms of efforts made. Some CPS investigators may acknowledge the parent’s efforts to get the food stamps reinstated and unsubstantiate the allegations based on that; other CPS investigators may determine the risk of malnutrition was too high and that the efforts were not sufficient to address the safety concerns and substantiate it instead.
The consequences of a substantiated CPS investigation can be significant. Even if your case doesn’t go to court, it can still be subject to a determination. If you work in a field where interacting with children is part of the job, you may lose it and not be allowed to work in your field again for decades. If your case is substantiated and another report is made in the future, that prior history will be taken into account and the consequences could be even more severe the next time (prior CPS case history is a significant factor CPS takes into account when it comes to what actions, if any, they will take). There are countless families that are reported to CPS more than once without doing anything wrong. Those with excessive reports are sometimes referred to as ‘frequent flyers.’ Regardless of outcome, CPS involvement of any kind can be traumatic and have lasting effects on a family, parenting style and close communities may impose stigma on a family subjected to a CPS involvement.
In other cases in the family and juvenile courts, this lower standard means that merely proposing an alternative explanation is not sufficient to refute allegations. An adjudication can go against you merely on subjective probabilities of 50.01% likelihood that the allegations or accusations are true- meaning that while the burden to prove the allegations is still on the petitioner, the respondent often has to fight harder than in the criminal court, where the beyond a reasonable doubt standard is a considerably higher evidentiary standard. This is why having the right strategists and legal professionals on your team can make all the difference in any case.
The more information you provide to your CPS investigator, the more information they will have to make a determination on the allegations. While some information may support a narrative opposing the allegations, remember that CPS is there looking for evidence the allegation(s) are true- evidence that the allegations are false isn’t factored into whether or not CPS meets the standard. The reason CPS investigators love to listen is it’s an information gathering exercise. You reveal more than you realize- especially when you’re scared. Next time you’re having a conversation with a friend or family member about nothing in particular, focus on how much you’re sharing. Watch how your emotions affect how much you communicate. If you are strategic in how you navigate a CPS case and are careful with what you share and when, you can reduce the possibility of enough evidence being identified to substantiate your case.
At Heartwork Defense, our child welfare consultants strongly recommend taking preemptive steps to both meet these standards before CPS ever gets involved and to take steps to reduce the chances of a report ever being made in the first place. If you’re already in court, the right strategists and legal professionals, proactiveness, agility, contingency planning, and reactivity are absolutely crucial. Ensuring you significantly exceed the minimum standard of care CPS sets, while minimizing the evidence collected is the only way to ensure an unsubstantiated case. Leaving your situation to chance if you can help it is not recommended, because CPS is more likely to assume the worst and substantiate in cases that are closer to the minimum and up for interpretation. Find out what the standard of evidence used in your state is to make sure you’re prepared in the event CPS knocks on your door and the standard used in your local family or juvenile court. If CPS is already involved, be mindful of what you share and when. When assisting subscribers, our child welfare consultants constantly take stock of all the information CPS or other opposing party knows and the best and worst possible interpretations in order to determine how to proceed further- you need to start thinking this way, too.
The following states use the Preponderance of the Evidence Standard to determine allegations of child abuse and neglect:
- Arkansas
- California
- Colorado
- Delaware
- Georgia
- Idaho
- Indiana
- Kentucky
- Maine
- Maryland*
- Michigan**
- Minnesota
- Missouri
- Nebraska
- New Jersey
- New York
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Texas
- Virginia
- Washington State
- West Virginia
- Wisconsin
- Wyoming
*Preponderance of the evidence for physical abuse allegations only. Credible evidence standard is used for all other allegations.
**Preponderance of the evidence for cases leading to court involvement only. All cases without court involvement use the credible evidence standard.