There is a lot of confusion over how removals are conducted by CPS and what the rules actually are. This makes it difficult to tell when you have a say in the matter, when you don’t, what questions to ask and how to plan effectively. This can cause families to make choices that are not in their interest without realizing it until the damage is already done. So…how exactly does CPS conduct a removal, how can you make sure it’s the real deal and what can or should you do?
While there is some variation across states when it comes to practices and criteria that must be met, the Child Abuse Prevention & Treatment Act (CAPTA) provides a general framework common to all states and Washington, D.C. for child removals. In all states, traditional removals (in which a child is physically removed from the home by CPS) require the cooperation of law enforcement and CPS. CPS acting on its own cannot take custody of a child without parental consent, as they do not have the authority. This is why law enforcement is involved. They have that authority based on exigent circumstances and CPS provides those exigent circumstances in their statement. While law enforcement may not release a child until CPS gets there, the removal is not complete without CPS showing up and providing the exigent circumstances law enforcement can use. If CPS and law enforcement are not BOTH present, this is not a removal by CPS and any transfer of custody is either on law enforcement, or more likely, with your consent. That would be considered a voluntary placement.
You should also receive written notification of the removal, which you may be requested to sign. You are not required to sign it, but if you don’t sign it, CPS is required to document that you refused to sign it. At CPSprotect Consulting Services, we recommend you keep a copy, acknowledge receipt, but do not sign. That document is considered a legal document and you should never sign such a document without reading it and ideally, consulting a licensed attorney familiar with the child welfare system and family court in your state. If you do not receive written notification, this is either a voluntary placement or CPS is not playing by the book, which can and should be brought to the court’s attention- as this would be a policy violation that may be grounds for dismissal.
In all states, a court order is required for removal. If it is later in the day and the court is not accepting new petitions that day, a removal may occur before a court order is issued. If this is the case, a removal can still occur, but it is typically required that CPS file a petition in court the next business day. If they fail to do so and cannot give a reason acceptable to court for the delay, that can be grounds for dismissal of the case and reunification of the child with his or her parent(s). Therefore, absence of a court order at the time of removal does not mean it’s a voluntary placement or in violation of policy.
Law enforcement officers are mandated reporters of child maltreatment and therefore, may be the first on scene. Because law enforcement professionals may be subpoenaed to testify in court regarding their actions if there is child maltreatment, they may try to get a confession. Law enforcement is allowed to lie and deceive during questioning and may do so. If they are trying to convince you to place your child elsewhere, but not all the criteria above are met, the choice is yours. At most, they can request your child be taken to the hospital for examination, but if CPS isn’t on their way, your child isn’t being removed by CPS and the officer is just looking for information. This is done, because if they leave the scene without doing anything and it turns out the child really is being maltreated, they can potentially lose their jobs or even go to jail. This liability structure is a grave shortcoming of our justice system.
CPS may also try to convince you to place your child elsewhere voluntarily. Sometimes, this is in the event they are considering removal as an option for your child(ren). If that is the case and you can verify it, make sure you’re familiar with the standard your local CPS agency uses for determining a safety home and that you can place the child(ren) with someone you trust who can meet those standards. Be very careful when doing this, as it is not always necessary.
In addition to requiring reasonable cause to believe a child is in danger or a child is in immediate or impending danger (wording varies by state), removals require written notification, a court order (either before removal or as soon as possible after removal) and the presence of both CPS and law enforcement. If a removal is performed before a court order is issued and CPS fails to obtain one, the child must be returned to the custody of the parent(s). While CPS cases are among the most frightening experiences any parent can endure, make sure you don’t let your judgment become so clouded that you miss when CPS or law enforcement are trying to convince you of making a voluntary placement or they are making an involuntary removal. Like law enforcement, they can play fast and loose with the truth when questioning you, so tread carefully. If you do, you’ll be in a better position to preserve your rights and protect your family.