The argument for the development of the Family Court System was to have all family issues to be heard by one judge. For example, Family Court might grant dissolutions of marriage and hear a domestic violence case between the same couple. Other functions include setting spousal support, deciding on paternity cases, handling truancy of a child, handling out of control cases on a child, termination of parental rights and making decisions in dependency, neglect and abuse cases. The last of these is what I will address primarily in this blog.
First, be reminded that definitions of child abuse, neglect and dependency may be found in Kentucky at KRS 600.020. This statute basically is defined by some of the following:
The definition of abuse/neglect includes when a child is harmed or threated with harm by a caregiver (parent, custodian, guardian, supervisor) in the following ways:
- Physical or emotional injury other than by accident.
- Creates or allows risk of physical or emotional injury other than by accident.
- Engages in conduct that prevents immediate and ongoing care (alcohol, drug use, other).
- Continues/repeatedly fails/refuses to provide ‘essential’ parental care/protection as age appropriate.
- Commits/allows commission of sexual abuse, exploitation or prostitution of child.
- Creates or allows risk of sexual abuse, exploitation, prostitution of child.
- Abandons or exploits the child.
- Does not provide adequate care, supervision, food, clothing, shelter, education or medical care for child’s wellbeing. A clause is added in this one regarding religious beliefs may prevent a finding of negligence but there are exceptions.Dependency is different and may be found in KRS 600.020 (19). This says that a child is dependent if it is not abused or neglected but is in improper care, custody, control, or guardianship but it is not the fault of the parent or other caregiver.
Guess who decides whether or not you have abused, neglected your child or if your child has been determined to be dependent? Well, this is a complicated process which begins in the following way. They are in order of how they occur.
1. A report is made by an interested party alleging abuse, neglect or dependency. An interested party could be a relative, friend, teacher, doctor or just about anyone else.
2. The intake worker (or intake worker and supervisor) determines whether or not the report meets criteria according to law/policy for investigation. Keep in mind, this decision is not based on fact; it is based on what the reporter said. If it is found to meet criteria, the reported case goes on to step 3.
3. The investigative worker begins investigating the allegations and my petition the court for an emergency order to remove your child until the time when it is determined that the child is safe EVEN WHEN THE ALLEGATION IS FALSE!
a. A worker may go to a school and interview your children without your permission.
b. A worker may run your criminal record, look to see if there have been previous reports (it doesn’t matter the
finding in the previous reports); can see if you have any previous court cases or a domestic violence history (as
victim or perp) in your past even if the charges were dropped.
c. A worker can interview your employer, your friends, your family members, your child’s doctor, your therapist, etc.
without your permission.
d. A worker can gather medical records on your child without your permission.
e. The boundaries of what an investigator can do are virtually limitless; he/she just has to determine that the
information he/she is gathering is relative to the case. As you can imagine, most workers are going to determine
that what they are asking is relative.
*Investigators are not like detectives at a police station; they go through a classroom training and shadow/follow another worker for a period of time. These folks are determining whether or not you have abused or neglected your child, a major deal in the lives of parents or other caregivers where this happens. It is also your word against theirs. There is no recording of interviews (with the exception of a child when a worker decides to) or any other way to prove what people said about you or what you told the worker. These individuals with Bachelor degrees from a university in various fields (not necessarily social work) are deciding guilt or innocence of parents/caregivers.
4. Once the investigative worker has concluded his/her investigation, you receive a letter with the finding. It will say something like “Evidence has been found to support the allegations of abuse/neglect. The case will then be passed on to an on-going worker without your consent. The conclusion is that it has been determined that your case has been substantiated for abuse due to domestic violence (or whatever the issue; it could say drug use, etc.). If you receive a letter stating this you can do the following:
a. Appeal the decision on an official appeal form.
b. Begin working through your case plan/safety plan created by a CPS worker in order to keep custody or regain
custody of your child/children.
*Substantiation indicates that the investigator found a preponderance of evidence (enough evidence to support the allegation/whatever was reported to the intake worker).
5. If you receive a letter that says your case was “unsubstantiated” and you have agreed to accept “services” (they call this a FENSA case) then your case will still be passed on to an on-going worker. This will allow a worker to monitor you and your family for several months and the time can be extended. If information is gathered during that time that a worker determines may be abuse or neglect, you are reported to an intake worker and the process begins again. An investigative worker may ask things like “would you like someone to help you with that?” or “our agency can assist your family with needs.” Unless you are emphatic that you are aware of available services and do not need assistance, you will be sent to an ongoing worker and they will develop a case plan as if you were substantiated against. Here’s the kicker: if you do not carry out that case plan (even though you volunteered) a worker can petition the court for emergency custody to remove children based on you not following through on your case plan and he/she can also take other action like requiring you to attend counseling you may not be able to afford or take parenting classes. If you refuse “services” when your case in unsubstantiated, you case is closed. No more worker involvement.
6. An on-going worker will sit down with parents (or other adults in the household) and create a case plan/safety plan that you are expected to follow through on. It is based on what the worker believes you need and this may not be in agreement with what you believe.
7. If you accept services voluntarily or your case is substantiated and you are forced into “services”, you are required to work through your case plan. Remember, an on-going worker has quite a bit of power in your life. He/she can petition Family Court for emergency custody, make recommendations to the court based on what they believe (according to the worker’s perception).
8. If a child is removed either during investigation or during on-going case services, know that it is VERY difficult to regain custody with the exception of a small number of cases. Ultimately, the power lies in the hands of the Family Court judge who depends on CPS reporting for decision making.
9. If a child is not removed, it can be difficult to get CPS out of your life. They can come into your home any day of the week and at any time during the case to inspect your home for safety, cleanliness, parenting skills, etc. There are few limitations. They are also still able to access other information from schools, doctors and others he/she sees as relative. You are expected to perform perfectly according to the case plan which has the requirements that you are expected to fulfill prior to regaining custody and/or to retain custody.
10. Once your case is closed, you may be asked to continue some action such as attend therapy or keep all medical appointments for your children; there can be an assortment of requirements. So, in the future if you are reported again and have not done what was asked, you may be found in violation of the case plan. This can be grounds for recommendation of removal.
According to law, the power lies with the Family Court judge to issue emergency removal orders and make decisions BUT in most cases, the judge will tell a parent to “follow the recommendations of the cabinet” (CPS). If CPS says you did not follow recommendations, the judge will not be kind in decision making.
What I am trying to emphasize in this blog is that while the Family Court has an important role and has power to make decisions such as removal or return of children and even termination of parental rights, in most cases the judge will follow the worker’s recommendation; recommendations made by on-going workers which may or may not be based on facts or are based on facts as they see it. For example, perhaps the worker put “find and acquire appropriate housing” on your case plan and you moved back in with your parents. The worker knows that you do not have enough beds in the home for the children so it is not seen as “appropriate housing”. You have violated your case plan. Another example might be that the worker asked you to get employment and you have looked for months and been unable to locate something that is full time so you can’t afford the family counseling that the worker is requiring. You are in violation of your case plan. Recommendations based on progress of your case plan is made by the worker to the court and used by the worker to make decisions as well. Can you see the distinction between the power of Family Court and CPS workers? Your family’s future may lay in the hands of a worker whose life perspective may be very different; He/she may be poorly trained, be biased in some way or have some other factor which guides decisions.
Final Advice: Regardless of the stage to which your case is in whether it is investigations, on-going or you are in the middle of a termination of parental rights, tape all conversations with workers and others (during family team meetings, personal interviews, etc.-check your state laws for the rules on recording), label your recordings (the most organized frequently wins) and keep them for future use. If you can afford it, find a lawyer to represent you! I don’t know how many times, I have heard a worker groan when he/she heard a lawyer was involved in a case. File appeals if you do not agree with decisions in the case; this can be any decision from set visitation to removal to overturning a substantiated case. If a judge has acted unethically, report the judge. It takes a little research to figure where to file a report of that nature. When all else fails and you know that you have done nothing wrong (you can make mistakes as a parent; there is no manual), keep a positive attitude and be polite but diligent in your pursuit of justice. As a parent, you have a God-given right to protect the rights of your child and your family.
If you are guilty of abuse or neglect, I encourage you to still do the research to make sure you are not judging yourself too harshly and if you still find you are guilty according to the laws of your state, take responsibility, make amends; it is never too late to create a new dream and set a new path. You are the example of what a parent should act like toward their children. Be a positive example.
Did you know that in many states, parents may not have been convicted of a crime in a criminal court but may have lost temporary or permanent custody of their children without due process? Many states have what is referred to as Family Court which is a separate, independent entity from from criminal court. This information is not a fabricated idea but truth. One such state is Kentucky where a parent lost custody of her daughter based on a school nurse's and a Child Protection Services (CPS) worker's opinion. The investigation led to the removal of her child prior to her ever being contacted by the school or a worker. The following is a real life scenario minus identifying information
For a moment, let's pretend that you have been reported for child abuse or neglect by your daughter's school nurse. Perhaps the school nurse examined your 2nd grader and found what appeared to be bug bites on her body and made a report to child protection believing that the bites were the result of fleas or bed bugs and that you have been neglecting your household and therefore your child. The report is given through the local hotline and the intake worker (person taking the report on the phone) deems it to be important enough to pass along to the investigative team. Please be aware that this decision may or may not be according to the policy or law. Next, a worker from the investigative team is dispatched as a result of the report and interviews your child at school based on the allegation by the school nurse. The worker talks to the child, the teacher, the principal, the nurse and any other party that he/she deems necessary to investigate the report. She even removes part of your child's clothing and takes pictures of the 'bites'. This is all done without your knowledge. One of the teachers tells the worker that your daughter has been tired during class and missed a couple of days last week. When the attendance lady looks for notes from a doctor visit as an excuse of the absences she is unable to find them on file; something you had turned in the day your daughter returned. Your daughter does not get off the bus that day and you frantically call the school thinking something awful must have happened.
Upon calling, the principal is put on the phone and tells you that you will need to call Child Protection for more information. You are told by a worker that you child has been removed due to neglect and that you will have a court date in the next 5 days to determine what action will be taken. She provides you no information on why the child was removed and tells you to come in to complete a safety plan.
When you meet with the worker, you are upset and demand to know why your daughter was removed from your custody. The worker notes that you have anger issues. You explain tearfully that your daughter loves to play outside and gets 'eaten up by mosquitos'. You share that you do not want to put chemicals on her every time she goes out to play. You explain that you provided doctor excuses every time your child was absent from school and are unsure why the school could not produce them. You offer copies but the worker declines. The court date comes around and the judge asks the worker for recommendations. She/he produces physical evidence they gathered from the photos and explains that your daughter has missed 5 days of school which is considered truant in your state. You are told to cooperate with the Cabinet/CPS and asked to stipulate to charges of neglect during the court proceeding to 'speed things along'. So, you do this, thinking your daughter is going to be returned. What you aren't told is that you have just admitted guilt in court (stipulated to neglect) and that the worker has substantiated (found enough evidence to support) the case of neglect against you. What this means for you is that you will never be able to work with children, elderly or any other vulnerable population because background checks will produce both of these findings in your case. Not only that but your child is not returned to you during the court proceeding and you are provided a list of things that you have to do (sometimes called a case plan) before a worker will consider recommending that your daughter is returned to your custody. The worker tells you that you must attend parenting classes, attend mental health counseling because you seem depressed (you cried in her office and in court), that you need to be assessed for anger issues (due to your confrontational behavior when you initially met with the worker) and so on.
Keep in mind that you still don't have custody of your daughter and in most cases such as in this scenario it can be months before that happens. Your child may be placed in foster care or with a relative depending on if the cabinet/CPS sees that family member as being appropriate.
This is not made up story. This is a true one and it is not uncommon. The definition of neglect for Kentucky can be found in a pdf file provided for the Cabinet (CPS) at the following website: http://chfs.ky.gov/NR/rdonlyres/196B2F37-D45C-41B7-91A7-DE5873AB9EC5/0/ChildRemovalHandbook2.pdf
If you believe you are immune to this happening to you, please consider that everyday a parent loses custody to 'protect the child'. Unfortunately, children may be removed based on an allegation prior to any facts being gathered. I will post subsequent blogs providing laws in various states and stories that will make you think twice about the possibility of this type of thing happening to you.
As an end to this blog, I will say that this woman was never arrested and was never tried in criminal court for neglect or abuse but lost custody of her child nonetheless and in the end it took the mother 13 months to regain custody. She was never provided due process
which is a 14th amendment right in the Constitution because her case fell under Family Court and the CPS system which is not required to adhere to the same requirements as a criminal case. The woman in this story had to put her daughter in counseling and is now home schooling her daughter because of what happened to her. The mother is now working with a lawyer trying to have the previous court finding that she stipulated to thrown out since she was never told the repercussions that it would have on her life. If she is able to overturn the previous decision, there is no guarantee that the Cabinet/Child Protection will withdraw the substantiation (basically, finding her guilty of neglect).
One afternoon in 2008, Janice Howe—a Dakota Indian—waited at the bus stop for her grandchildren to come home from school. They never arrived. Earlier that day, a social worker had taken Janice's grandchildren. They were driven to a white foster facility hundreds of miles away. The reason stated in the case file: a "rumor" that Janice's daughter, Erin Yellow Robe, had been using drugs. She hadn't. To this day, Janice's daughter hasn't been charged or arrested for drugs—or anything else.
For the next year and a half, Janice fought to get her grandchildren back. She called the state's director of social services. She wrote letters to the governor. Finally, she convinced her tribal council to threaten the state with kidnapping. A few weeks later, her grandchildren were returned...on a "trial basis."
Since 2005 the Lakota People's Law Project has been working with hundreds of families who share Janice's story. But they haven't all been so lucky. Over the past decade, the state of South Dakota has removed more than 5,000 Native American children from their homes.
Sadly, this problem is not new. For more than 100 years Lakota children have been taken from their families. It began in the 1880s under a U.S. Government policy of forced assimilation: children as young as 5 years old were removed from their homes, shipped to boarding schools, and instructed in the ways of white culture. Today, a generation of children is once again losing its connection to its culture. This time it's through state-run foster care.
Read More at http://lakotalaw.org/lakota-child-rescue-project
When I came across the story that you can read on the link provided below, I was reminded of all of the unjust (and frankly, unlawful) removals that I have seen during the course of my career. When you read this, keep in mind that while the hospital staff acted unprofessionally, the fault lies primarily with the system (CPS) making the decision to remove. There is no law that states one can't give birth at home. While it may not be something that you, the reader might aspire to do or understand, it is a right that a mother has as long as she has no health risks that have been detected. This story is an illustration of how easily one can lose custody of a child and without being informed of the reasons behind the removal. The website that you will find this story on is one I highly recommend that you prescribe to if you are a home schooling parent, considering it or want to be informed of stories like this one. As always, I encourage you to keep an open mind when you read these postings.http://www.hslda.org/docs/hshb/118/hshb11827.asp
1. Child Protection Services (CPS)-In this blog, this refers to the agency which investigates reports/alligations of child abuse or neglect. This agency also provides ongoing services to family who have been found guilty (substatiated) of abuse or neglect of a child. Services may also be provided by what is referred to in some states as 'family in need of services' (FENSA) which is provided if the parent volunteers to participate. This is only done in cases where the family is found not guilty (unsubstatiated).
2. Substantiation/Substantiated-In simple terms, this is used to say that the investigator (a CPS worker) found enough evidence to support the report of abuse or neglect. This is based on preponderance of evidence rather than 'beyond a shadow of a doubt'. This decision is made by the investigator who is an employee of CPS/The Cabinet for Families and Children (this may differ in name from state to state) and generally must have the approval of the supervisor.
3. Preponderance of evidence-This is when a worker (or civil court) finds enough evidence to support the finding of guilt which is referred to as 'substantiation'. In other words, from observation and interviews of parents, children or other individuals (school officials, doctors, etc.), the worker has what they believe to be enough evidence to justify a finding of guilt.
4. Unsubstantiated-This is the opposite of #2. In other words, the investigator did not find enough evidence to indicate that the family or individual who was reported for abuse or neglect was guilty. So the case was unsubstantiated.
Additional Points on these introductory definitions
- A finding of guilt/substatiation is separate from a conviction in family court, civil court or any other court responsible for making decisions on removals and other child-related decisions.
- A substantiation for child abuse/neglect does not show up on a criminal check in most cases BUT it does mean that if you apply for a job and the employer runs a full background check which is fairly common, this finding by the Child Protection Services agency can show up. You are 'in the system' once a finding of guilt/substantiation has been entered. This means that if you are apply for a nurse job, a daycare job, a counseling job, a university job or any other job involving any vulnerable population, you will be unable to work at the job you have applied for. To my knowledge this is true in most states. This is also something you are typically not informed of in the findings of the case. Keep in mind that once a case goes to court, different rules apply.
- When an investigation is concluded, by law, you are to be notified of the finding and have the right to appeal the decision.