This is a publication by Brad TenBrook in Attorney at Law Magazine.
Child Protective Services (“CPS”), a division of the Department of Economic Security (“DES”), investigates suspected child abuse and/or neglect when a report of maltreatment has been made. The protection of children is undoubtedly good public policy. However, the increase and decrease of CPS intervention with families can be attributed to high-profile cases in the news. That is, in my opinion, the ebb and flow of CPS vigilance can be tied to their presence on the nightly news or AZ Central’s front page. And a vigilant CPS worker can mean a headache for your client.
If CPS takes temporary custody of your client’s child(ren), your client will be appearing in Juvenile Court within a few days of being served with a temporary custody notice (which gives CPS a 72 hour window to remove the child, investigate the allegations, and decide whether to file a dependency petition). I describe dependency cases as a confusing blend of civil and criminal cases, involving the fundamental right to parent, that take place in Juvenile Court. In other words, they take place at the “intersection of criminal and family law.” If you have not practiced in the area, I highly recommend finding an attorney who has. The nuances of the law are not overly complicated, but navigating the CPS investigation requires familiarity with the process.
CPS will file a dependency petition when they feel there is no parent willing or able to parent a child. If CPS has decided to file a dependency petition (through their attorneys at the Arizona Attorney General’s Office), your client is more than likely being accused of abusing, neglecting, or failing to protect his or her children, all of which are very serious scenarios.
Before a dependency petition is filed, CPS investigates. A CPS investigation usually begins with an interview of the child(ren). Your client does not have a right to be present in that interview and if the kids are school age, the interview will most likely take place at school. Because the data collected in this interview can be used not only in the case involving CPS, but also in other scenarios, the lack of your presence can be a hard pill to swallow. Following the investigation, CPS will make either a ”substantiated” or “unsubstantiated” finding regarding the allegations. If CPS determines the allegations are substantiated, and CPS removes your client’s children, your client is in for a long and drawn out fight to get his or her children back. As a result, anything having to do with another case (most likely a family law case) will have to wait until the dependency case is dismissed and temporary orders are granted by the Juvenile Court judge.
The big question is often whether the substantiated finding should carry weight in a family law case. I do not think so. An analogy could be that of the clear inadmissibility of a civil citation for speeding to prove liability in a car accident case. But to understand this analogy, you need to understand the process
The decision to substantiate an allegation is decided by DES, the same governmental agency that investigated the matter. There is absolutely no neutral oversight or objectivity in the determination. So, if your client disputes the finding, you should contest the same and appeal the matter through the DES process. Eventually you will be assigned an administrative law judge – that is, the substantiated finding made by DES, which looks daunting, is actually not the end of the road.
Now, if your client was arrested and convicted for child abuse, you are not going to win the appellate fight, and spending the money on it is probably a waste. But, if the child rolled off the bed and was injured, and the only allegation underlying the substantiation is that the child was unattended on the bed, fight it! Due process can work and allowing the other party in a family law case to waive a letter that purports to ‘substantiate’ (i.e., confirm) abuse is just not right.
Courts can give weight to these substantiated findings. However, judicial officers who have rotated through the Juvenile Court, where real CPS cases are tried, understand the error rate and arbitrariness of the findings. Others need to be educated through your legal advocacy. So, appeal the finding, object to the admissibility of the ‘substantiated’ form letter, and demand that the CPS worker come in and testify.
Frequently asked questions:
- What if CPS did not investigate properly and wrongly substantiated the allegation?
I hear this all the time. The reality is that there are a number of good CPS investigators with great skill and intentions, but some investigators feel overworked and underpaid, and are occasionally very green. Some act as though they are qualified to conduct forensic interviews and make criminal findings. This can be a scary prospect if the interviewer does not possess the requisite experience. Unfortunately, the limited “forensic interview” training that case workers receive can lead to horrific results. A poorly conducted forensic interview of a child can impact a criminal prosecution and re-enforce a false belief. Essentially, the child may actually think something occurred because of what was improperly suggested during the flawed forensic interview. Notably, CPS rarely, if ever, records their interviews. So the investigation is completed based on the notes taken by the interviewer who may have had a pre-conceived notion when he or she began the process. This is contrary to standards in forensic interviewing and needs to be properly addressed with the Family, Juvenile, and Criminal courts so that triers of fact are aware of the issue. To combat this practice, I would recommend reading “The Science of False Memory” by C.J. Brainerd and V.F. Reyna. It is a forensic psychology text that is helpful in preparing cross examination of “forensic interviewers.”
- Can I fight the substantiated finding for my client?
You can and should. A substantiated finding of abuse by CPS is always used in domestic relations custody matters. How frequently do we see the CPS substantiated letter marked as an exhibit as if it proves child abuse? Too often. Yet the letter carries weight, even if all CPS did was a cursory investigation relying on information from a less than reliable source. The appeal process is two-fold. First, there is an internal review once the appeal is filed and second, assuming CPS stands by their findings (essentially agrees with themselves), there is relief available in the Administrative Law Court. For some, a substantiated finding could be career ending. An upheld substantiated finding (or one that is not appealed) means your client will be placed on DES’ Central Registry – basically a list of child abusers. Importantly, if your client’s employment requires finger print clearance, it is likely that their employer will pull the clearance once they see your client’s name on the registry. As a result, the appeal could be the difference between your client keeping their professional license or losing their means to provide.
- My client was in the middle of her divorce proceeding when CPS removed the child. Can we finish the divorce?
While the Family Court would still have jurisdiction over property-related issues, custody matters are within the exclusive jurisdiction of the Juvenile Court judge. There is no reason why you cannot finalize the divorce, but issues pertaining to the custody and care of the children will be left for later determination following the adjudication of the dependency proceeding. In some cases, expediting the divorce is necessary. (E.g., the father is accused of abusing the child, and the mother is accused of failing to protect the child from the father. In such a situation, the divorce may convey to the court that the mother has separated from the abusive father.)