By James M. Wirth, Esq.
Courts and the Law Limit CPS Powers
What can DHS do or not do in your case? Well, there’s a whole bunch of things, but just giving just a brief overview of a few of them, things DHS can do.
They can interview your child without you being present. If DHS wants to interview your child, they can do so at the school. That’s a big place for DHS to try to contact your child in all this is to go to the school. Most schools have a specific meeting room, especially larger schools, where DHS can meet with them. This can be very intimidating to your child. I’ve seen situations where everyone knows the DHS room, or everyone knows when you get called over the intercom for a certain thing it’s a DHS case. Then other students want to know what’s going on with your son or daughter’s life, and that can be very embarrassing or cause a lot of anxiety for your child. But that’s one of the things they’re allowed to do.
CPS Required to Tell You They Spoke to Your Child
However, what they can’t do is interview your child without notifying you that they did so. They can’t just go in, interview your child, and never tell you about it. They have to notify you that they have interviewed your child at school. Now, sometimes DHS depending on your worker might give you notice. “Hey, I’m going to be interviewing your child in the next hour at the school.” Most of the time it happens afterwards though if they do give you notice.
Warrant Required to Enter Your Home
Another thing DHS can do is they can get a court order to enter your home and interview your child. There’s actually a statute that allows the district attorney if you do not provide access for the interview to DHS, they can go through the court process and a judge will have to sign off on that.
That does require a judge to see that there’s a reason that the DA has met the proper requirements in filing that. But the court can order you to make your child available, and home available, for inspection basically. It allows them to go in and interview your child there at the house.
What they can’t do is show up and forcibly go into your home and interview your child. They’re not law enforcement. They can’t show up and say … Law enforcement can’t do this without a warrant or exigent circumstances anyway. But they can’t just show up and say, “Hey. I’m DHS. You’re letting me in, or I’m going to break down your door.”
They don’t get the battering ram or anything like that to get into your house. What they get is the ability to go to the prosecutor. The prosecutor files a request with the judge to get a court order for your child to be available.
Options for Placement
What DHS can do is they can give you … Like if you want to give them the name of someone that you prefer your child to be placed with, if DHS can approve them, and get them certified, and make sure they jump through all DHS’s hoops, they can try to get your child placed with someone you want the child placed with. But they can’t promise you that placement is going to remain the child’s placement. They can’t even promise you at the outset a placement’s going to be there because there’s several things that a potential placement home for your child has to go through. Especially when you start talking about non-family foster care, the certifications that have to go on there.
There’s background checks. DHS, I’ve seen where they have not approved a placement because of a misdemeanor charge like a DUI that was almost 20 years old with no other criminal history in between. So they can deny placement, placement you want, but they can also not …
They can’t promise you that your child will remain there because whatever placement they put your child in, should something come up, should there be allegations made, should they find out something they don’t like about that placement, should that placement ever make statements or do anything that just goes against policy or angers DHS, they can pull your children out of that home and put them in another home.
Also, another thing is they can promise and tell you that they’re going to allow visitation, but they can’t always promise that your child is going to be placed in the same county you live in, so that visitation may require travel. It may be limited in scope because your child is in a foster placement two counties away. It just depends on what type of placement options are available for DHS whenever your child is taken from you.
Something they cannot do is, they cannot give you the name of who reported you. A lot of times people are very curious and often mad that they’re being, have all these allegations against them, they’re having to go through this whole process, this investigation, their whole life is uprooted, and you never get to see your accuser. In the criminal system you have a right to face your accuser. In the DHS system you really don’t. It’s confidential. It’s protected.
You cannot get the name of the person that reported you. DHS can’t give that to you. In fact, in their reports, they are to remove that name before they send them out to the DA’s office. The DA’s office can’t even give out the report to your attorney if it has the name, and the DA has to remove the name. DHS most of the time doesn’t have the reporting party’s name in there to prevent that very issue.
Malicious Reports of Neglect are Criminal
What they can do though. There’s actually a criminal offense if someone is maliciously reporting you to DHS. Let’s say they’re trying to harass you, intimidate you, just to be a pain in the backside. If someone is doing that repeatedly, if you’re getting several DHS reports that always are either screened out, or ruled out, or there’s nothing to them, you can talk to law enforcement about possibly looking into an investigation over to see if someone’s harassing you through filing DHS reports. I believe it’s a misdemeanor, and so DHS in that situation can work with law enforcement.
You’re not going to find out who it is until the case comes up or an investigation comes up, but DHS can work with law enforcement to review their documents to see who’s been calling it in for harassment purposes, for law enforcement.
Relinquishing Parental Rights
DHS cannot agree, and I used to see this all the time … People would if they wanted to relinquish their parental rights, they decided that they weren’t going to fight anymore, or that maybe they liked where their kids were, they were getting visitation, and they wanted to work on a few things on themselves before they tried to get their kids back, or tried to have a relationship with their kids, they ended up at a decision where they decided they’re not going to do a guardianship.
They’re just going to relinquish their parental rights and cut and sever all ties to their children legally, but maybe there’s still visitation. Maybe it’s a family member and they can still have a relationship with their children. Or if not, they just really like where their kids are at, and think that that person’s going to be better for them than they will be.
So a lot of times in those situations parents are asking, “Well, I’ll relinquish my parental rights if so-and-so over here where the kids are placed can become the adoptive parents.”
Now, I’ve seen a lot of beating around the bush. Kind of, “Yeah. You know, well, if they pass everything that’s what we’re looking at.”
But the truth is, DHS cannot guarantee that if you relinquish your parental rights, the people that have your children will be the people that get to adopt your children. There’s a lot of things that go into that. One thing is, if they’re Native children and it’s not a ICWA approved placement, then the tribe can actually object to the placement and to the adoption by those people. If for some reason DHS finds something out that they disapprove of in the house, they may not be a placement.
Placements Cannot Be Guaranteed
Now, a lot of times whoever the kids are placed with ends up being the adoptive home, but DHS cannot guarantee you that. Now, what they can guarantee you is, if that person passes all the policy requirements, and there’s no Indian Child Welfare Act issues, there’s nothing else that comes up, that that person can be allowed to petition for adoption. It doesn’t mean that DHS can not promise that they’ll get it.
In addition to that, the court and anyone in there, cannot have you relinquish your parental rights based on any type of assurances of what’s going to happen to your kids. When you relinquish your parental rights you have to do it freely and voluntarily, meaning that you are doing this solely for the best interests of your children, or that that is your primary concern, and it’s not because you’ve been promised anything, including where your child’s going to be adopted to.
CPS Cannot Promise Guardianships
One thing that comes up a lot of times is, DHS by policy, at least everywhere I’ve been and in every policy I’ve read, cannot agree to a guardianship. Now what DHS policy on that and what supervisors and district directors have always told me is that when DHS is looking at a situation where the children are going to be placed with other people, they want termination of parental rights.
The reason for that is because that’s permanent. You can try to appeal it and try to maybe at some point reinstate parental rights through adoption or guardianship type of thing yourself. But most of the time your parental rights, once they’re gone they’re gone, and DHS sees that as what they call permanency. Meaning a permanent solution to your child’s living and child-rearing situation.
CPS Can Passively Accept Guardianships
But what they can do. There are situations where everyone agrees a guardianship is in the best interest, and even though DHS can’t support that, they can agree not to object to it. Now I know that sounds like a lot of legal mumbo jumbo and how it sounds, but there’s a pretty big difference there. DHS by choosing not to object to it and not to agree to it, are just standing there neutral. You know, “We’re not going to express an opinion either way.” But if they do have an objection, they can mount a fight to say why this shouldn’t happen.
So in a guardianship DHS may not be able to agree and say, “Yeah. We want this done,” in court. But sometimes their way of doing that is just not to object to the guardianship being ordered by the judge.
These are just a few of the things that DHS can and can’t do in a case that it’s come up.
CPS Cannot Deny Visitation
One other thing that I’ve seen it happen, DHS cannot unilaterally, just own their own, deny visitation between you and your child. The court is the … They know they can, DHS can control how visitations are handled if it’s when they are, how they’re conducted, things like that. But it is a court that would suspend your rights to visitation. By DHS policy, by just best practices, by statute, you’re going to get visitation with your children.
Now, it may be supervised. It may not be that long, may only be an hour or so a week, but DHS cannot just on their own decide you’re not going to get to see your kid ever. I’ve seen that happen where DHS just said, “Well, we just assumed because this document was filed in the case that there would be no visitation.” Unless a judge says there’s no visitation, then that’s how you lose your right to have visitation with your children.
CPS Cannot Make You Work a Plan
DHS can’t make you actually work an Individualized Service Plan. That’s the court, and in fact, when you are doing your Individualized Service Plan, you have all these things you have to do on it but in reality that plan, and in multiple court decisions, is not considered a end-all-be-all. It’s not a checklist that when you complete one portion of it you’re done. The point of the Individualized Service Plan is to give you a guideline on how to complete your case and prove that you have corrected whatever condition the court found was present.
So if the court found that you had substance abuse problems, that’s the condition that has to be corrected before you can get your children back. And DHS by making this Individualized Service Plan, or ISP plan, has laid out, here’s how we believe the conditions will be corrected.
Now, it doesn’t happen very often, hardly at all, but some people do correct the conditions without ever finishing their Individualized Service Plan. They’re able to show that they … I’ve seen this mostly in drug cases where they show, they do a parenting class, and instead of following all DHS’s recommendations on what they want to see substance abuse-wise, they prove that over several months, or maybe even through intensive rehabilitation, that they can avoid substances and can long-term avoid substances.
A lot of times DHS will fight on these to say that, “Well, you didn’t work the plan.” But remember, it’s not the plan you’re working it’s the conditions that you have to correct. That’s what the courts have said.
It’s not based on this document in court, it’s based on, have you corrected conditions. That being said, DHS can bring up the fact that you aren’t working the plan in court during your reviews, and if you don’t have anything to show where you’re doing something above and beyond what DHS asked for, that you’re doing something that’s actually correcting the conditions, you’re going to end up probably getting scolded by your judge, and everyone’s going to be a little angry at you.
But in things that actually matter, after your three-month period, they’re about 90 days, if you’re not making progress the prosecutor can file a petition to terminate your rights. They can file that based on lack of progress shown by you’re not completing the ISP plan, and you’ve shown no change in behaviors or conditions.
CPS Cannot Deny Your Right to An Attorney
That’s a few things DHS can and can’t do. I’ll be providing a few more of these. One thing to remember is, having a good attorney in a deprived case is going to help you just as much as having a good DHS worker that works with you. A good attorney is going to be able to get in there and argue on your behalf. Remember, DHS is there because that’s their job, and they have policy. DHS policy controls what they do.
A good attorney is there for you. They’re your advocate, and they are there so that your interests are shown to the court, not anyone else’s. They’re there to support you, and that’s what a good attorney can get you no matter what DHS does or doesn’t try to do in your case.