State CPS agencies use one of three standards of evidence to determine allegation(s) convincing evidence. While exact wording my vary in practice, these are the three standards used. Clear and convincing evidence is the highest standard used and is only in use in one state (scroll to the end of this article to find out which); the rest use a lower standard of evidence.
In the 1984 case Colorado v. New Mexico, the United States Supreme Court defined clear and convincing evidence as “highly and substantially more likely to be true than untrue.” This places it well above the fair preponderance of the evidence standard, but short of the reasonable doubt standard used in the criminal courts. If you live in a state where the clear and convincing evidence standard is used to determine allegations in CPS investigations, this is good news!
In child maltreatment investigations, CPS is not looking for evidence the allegation(s) are false; they’re looking for evidence the allegation(s) are true. Therefore, the higher the standard of evidence, the more evidence supporting the allegation(s) they’ll need to substantiate the allegation(s) against you. This leaves alleged subjects with more room to cooperate without risking substantiation. This does not, however, mean you should be any less mindful of the information you do share with CPS or the information CPS has access to than you would be if facing the some credible evidence or fair preponderance of the evidence standards.
To substantiate allegation(s) under the clear and convincing evidence standard, CPS needs to have evidence that strongly support that the allegation(s) are true. If not, they won’t meet the standard and the allegation(s) will be unsubstantiated. This doesn’t mean CPS believes no child maltreatment occurred- it may very well have occurred. By unsubstantiating a case, all CPS is saying is that they didn’t find enough evidence to meet the burden of proof in their jurisdiction.
At Heartwork Defense, we recommend the following in most cases to achieve the best outcome available to you when facing allegations of child maltreatment by CPS:
- Do not show CPS more of the home than is necessary to avoid court involvement.
- If asked for medical or mental health records, provide a letter from the medical or mental health professional signed by them on their professional letter head that includes any relevant medical or mental health conditions, the date of last visit and asserts that they have observed no signs of child abuse or neglect. Do not sign a HIPAA consent form for direct contact or letters.
- Do not offer any collateral contacts (extended family, friends, neighbors, etc.) for CPS to corroborate your story. If you must, reach out to those contacts first. You don’t have to decide whether to provide those names at the first visit.
- Do not offer more information than CPS asks for. Do not volunteer information. Do not provide information not relevant to the case. CPS is known for asking open questions and stressed or anxious parents may go on tangents, revealing more than they realize.
- Obtain relevant services (if any) independently before CPS offers to make a referral.
It’s important not to confuse the clear and convincing evidence standard with the reasonable doubt standard used in the criminal courts. The clear and convincing evidence standard can be met with reasonable doubt still present. If CPS collects enough evidence in support of the allegations to meet the standard, they will substantiate the allegations. Many parents make the mistake of trying to provide as much information as possible to the contrary to convince CPS they are good parents. This is a potentially grave mistake!
Because each of these standards of evidence are still at least somewhat subject to interpretation and CPS has the unilateral authority to decide what that means, it is not always easy to predict how a case will turn out based on the evidence presented and the standard used in isolation. Regardless, a standard of evidence provides a general idea of what will be needed and can allow you to plan accordingly. Keep in mind that CPS acts like law enforcement without technically being law enforcement. Thus, the rules are not as stringent for CPS and you should assume you have even less room for error than you do in the face of law enforcement alone.
If you handle CPS properly, it is possible to navigate a case with relative ease. In our experience, many families are caught by surprise and by the time they learn what they need to do, they’re already very deep into a case. If you learn the rules, the terminology and plan accordingly, CPS won’t be able to do much…and it all starts with the investigation and the evidentiary standard.
The clear and convincing evidence standard is used to determine allegations of child abuse and/or neglect in the following states:
- Kansas