Child Protective Services Investigations
At the Meryhew Law Group we are a criminal defense firm focused on representing our clients in the very challenging defense of sexual misconduct in criminal courts. But the reality is that many of our clients are also facing parallel investigations by Child Protective Services (CPS) or the Department of Health (DOH) or other governmental agencies. Negotiating through the maze of rules and regulations that govern a CPS investigation can be difficult at best, and almost impossible without a lawyer. At The Meryhew Law Group, our attorneys understand the rules and how to help our clients make it through this process, but we do not typically handle complicated or lengthy CPS involvement by our clients. We do work with very fine lawyers who focus in this area and they are often a critical member of our team as we collaborate on finding the best solutions for our client. The key to any contact with CPS is to understand what the law requires and what you can do to protect yourself and your family. To help you with that we offer the following information.
- What is Child Protective Services and What is it Supposed to do?
- What Should You do if You are Under Investigation by CPS?
- When can Child Protective Services Become Involved in Your Life?
- What Legal Responsibilities do You Have Towards Your Children?
- What is the Definition of Child Abuse or Neglect?
- What is the Definition of Abandonment of a Child?
- What Steps Will CPS Take During an Initial Investigation?
- What if You Lose Your Home? is That Abuse or Neglect?
- Can You Discipline Your Child?
- Can You Touch Your Child?
- What is a Mandatory Reporter?
- When Can CPS Remove a Child From the Family Home?
- If CPS Removes a Child From Home, Where Will The Child go?
- If a Parent Does not Want to Consent to Out of Home Placement, What Happens?
- How Long can CPS Keep a Child From his or her Home Against the Wishes of the Parents or Legal Guardians?
- What Happens if CPS Determines That a Claim of Abuse or Neglect is Unfounded?
- What Happens if CPS Determines That a Claim of Abuse or Neglect is Founded?
- How Can You Challenge a Finding of Abuse or Neglect?
- What Happens When CPS Receives a Request to Review a "Founded" CPS Finding of Child Abuse?
- Can the Child Who is The Alleged Victim of Abuse or Neglect Testify at the Administrative Hearing?
- How Will an Administrative Law Judge Decide Whether to Uphold or Reverse a Finding by CPS?
Child Protective Services (CPS) is a branch of the Washington State Department of Social and Health Services. Its mandate is to protect children from child abuse, neglect and safeguard such children from future abuse and neglect, and conduct investigations of child abuse and neglect reports. Actions of CPS may include the following: investigation of reports of alleged child abuse or neglect, assessment of risk of abuse or neglect to children, referrals to services to remedy conditions that endanger the health, safety, and welfare of children; making referrals to law enforcement when there are allegations that a crime against a child might have been committed; arranging out of home placement and petitions to courts when necessary to ensure the safety of children. WAC 388-15-001.
CPS will typically contact you if you are under investigation for abuse or neglect and a CPS investigator will want to speak with you, your family, any witnesses and possibly the child about the allegations. The information CPS gathers is often then forwarded to the police for the initiation of a criminal investigation. While it is best to cooperate with CPS, your children and your liberty may be at stake, so it is best not to make any statements to the investigator or meet with him or her without first consulting with an attorney who has experience with CPS investigations. You should realize that the primary focus of the CPS investigator is on the safety and welfare of the child and not on you, your family or your rights as a parent. The investigator's assessment of the case may or may not be accurate or complete. The investigator may also pass any information gathered or statements you make to the police. Since a CPS investigator is not a police officer, there is no obligation to notify you of your Miranda rights before making a statement. While it is crucial to cooperate with CPS, it is best if you are represented by an experienced attorney who will communicate with CPS on your behalf, collect the relevant information and represent your interests. Proceeding this way significantly reduces the danger of CPS mishandling or misconstruing information.
CPS must act when it receives a report from any source of child abandonment, abuse or neglect. Sources of such reports may be anonymous. If CPS receives a report of abuse or neglect, it must record and assess it to determine what, if any, actions it will take. If CPS determines that a report does not meet the threshold of abuse or neglect, CPS will not act further, but will nonetheless maintain a record of such report. If CPS determines a report meets the definition of abuse or neglect, it must engage in a risk assessment and investigation of the report. WAC 388-017
A parents and/or legal guardian of a child is required to care for the child in a way that keeps them safe and healthy. Parents and guardians are required to provide adequate food, shelter, clothing, supervision and health care necessary for a child's health, safety and welfare. School age children must also attend school. Failure to meet these needs can be grounds for CPS to get involved in a family's life.
Physical abuse means the non-accidental infliction of physical injury or physical mistreatment of a child. Such actions include: throwing, kicking, burning, or cutting a child; striking with a closed fist; shaking a child under three; interfering with a child's breathing; threatening a child with a deadly weapon; or doing any other act which causes bodily harm. (The law does allow parents and guardians to physically discipline their children, but the discipline must be for the purposes of disciplining or correcting the child and cannot cause greater than transient pain or minor temporary marks or be injurious to a child's health, safety or welfare.)
Sexual abuse means committing or allowing someone else to commit: the intentional touching, either directly or through the clothing, of the sexual or other intimate parts of a child, or allowing, permitting, compelling, encouraging, aiding or otherwise causing a child to engage in touching the sexual or other intimate parts of another for the purpose of gratifying the sexual desire of the person touching the child, the child or a third party.
Sexual exploitation includes, but is not limited to, such actions as: allowing, permitting, compelling, encouraging, aiding or otherwise causing a child to engage in prostitution; sexually explicit, obscene or pornographic activity to be photographed, filmed, or electronically reproduced or transmitted; sexually explicit, obscene or pornographic activity as part of a live performance or for the sexual gratification of another person. RCW 13.34; 26.44 ; WAC 388-15-009.
Neglect means committing an act or failing to act when a child is in harms way. This can be the cumulative effects of a pattern of conduct, behavior or inaction, on the part of a child's parent, legal custodian, guardian or caregiver that shows a serious disregard for the consequences to the child of such magnitude that it creates a clear and present danger to the child's health, safety or welfare. A child does not have to suffer actual damage or physical or emotional harm to be neglected. Negligent treatment includes, but is not limited to: failure to provide food, clothing, shelter, supervision and/or health care necessary for a child's health, safety or welfare; actions or a failure to act that results in or creates a substantial risk of injury to the physical, emotional or cognitive development of a child. WAC 388-15-009; RCW 26.44
Abandonment means the child's parent, guardian, or other custodian has expressed, either by statement or conduct, an intent to forego, for an extended period, parental rights or responsibilities despite an ability to exercise such rights and responsibilities. RCW 13.34.030; WAC 388-15-011.
CPS must meet with the alleged child victim and attempt to meet the alleged perpetrator if CPS' risk assessment of the report is moderate to high. When meeting with the child, CPS may interview the child outside the presence of the parent or legal guardian without their notification or consent. RCW 26.44.030 (10). Unless the child objects, CPS must make reasonable efforts to have a third party present at the interview so long as the third party does not jeopardize the investigation. CPS may also take photographs of the child. RCW 26.44.050. CPS must only investigate anonymous reports according to RCW 26.44.030(15). CPS must contact law enforcement about a report of abuse or neglect per RCW 26.44030(4) and 74.13.031. CPS will attempt to complete investigations within 45 days, but must complete them within 90 days unless the prosecuting attorney or law enforcement is involved and determines more time is needed. WAC 388-15-021.
Poverty and homelessness do not constitute abuse or neglect in and of themselves. WAC 388-15-009; RCW 26.44.
Physical discipline of a child, including the use of corporal punishment, is not considered abuse when it is reasonable, moderate and inflicted by a parent or guardian for the purposes of restraining or correcting the child. The age, size and condition of the child as well as the location of any inflicted injury shall be considered in determining whether the bodily harm is reasonable or moderate. Other factors CPS considers when determining whether physical punishment was abuse may include the developmental level of the child and the nature of the child's misconduct. A parent's belief that it is necessary to punish a child does not justify excessive, immoderate or unreasonable force against the child.
A parent, legal guardian or person providing medically recognized services for a child have the legal right to touch a child's sexual or intimate parts for the purpose of providing hygiene, child care, and medical treatment or diagnosis. WAC 388-15-009.
A great number of professionals are deemed "mandatory reporters" under the law, which means they must make a report to CPS or law enforcement any time they have reasonable cause to believe that a child has suffered abuse or neglect. They include any practitioner, county coroner or medical examiner, law enforcement officer, professional school personnel, registered or licensed nurse, social service counselor, psychologist, pharmacist, employee of the department of early learning, licensed or certified child care providers or their employees, employee of the department, juvenile probation officer, placement and liaison specialist, responsible living skills program staff, HOPE center staff, or state family and children's ombudsman or any volunteer in the ombudsman's office. Mandatory reporters also include any person, in his or her official supervisory capacity with a nonprofit or for-profit organization, who has reasonable cause to believe that a child has suffered abuse or neglect caused by a person over whom he or she regularly exercises supervisory authority, provided that the person alleged to have caused the abuse or neglect is employed by, contracted by, or volunteers with the organization and coaches, trains, educates, or counsels a child or children or regularly has unsupervised access to a child or children as part of the employment, contract, or voluntary service. See RCW 26.44.030. Mandatory reporter may voluntarily share otherwise confidential information with CPS or the police if relevant to the allegation of abuse or neglect. If requested by CPS or the police, mandatory reporter must provide all relEvant records in their possession related to the child at issue. RCW 26.44.020, WAC 388.15.029.
CPS may remove a child from the care of his or her parent, legal custodian or guardian for up to 72 hours (excluding Saturdays, Sundays and holidays) if it determines that the child is at risk of serious harm. In order to remove the child, CPS must have one of the following: a court order directing the out of home placement (RCW 13.34.050); a law enforcement officer placing the child in protective custody (RCW 26.44.050); a physician or hospital administrator detaining the child and CPS assuming custody until a court hearing is held (RCW 26.44.056); a written, voluntary placement agreement signed by the child's parent, legal custodian or guardian. If CPS intends to keep the child out of the home for more than 72 hours, it must have either the written consent of the parents or legal custodians or an order from a judge authorizing it t do so after a shelter care hearing held in court.
CPS must attempt to place the child with a relative who is willing and capable of caring for the child unless it is determined that such relative placement would jeopardize the child's health, safety and welfare or it would hinder the attempts to reunite the parents and child. WAC 388-15-037; RCW 13.34.60. CPS may also place the child in foster care, authorized group home or with a responsible adult.
If a parent or legal custodian does not agree to a child's out of home placement beyond the 72-hour time limit and CPS intends to keep the child beyond that time period, CPS must file a dependency petition in juvenile court. A dependency petition is a civil complaint alleging that the child has either been abandoned, abused or neglected, or that there is no parent or legal custodian who can adequately provide for the child's health, safety and welfare. Once a petition is filed, CPS must make reasonable efforts to notify the parents or custodians of the petition. This hearing must take place within 72 hours of the child's removal from home (excluding Saturdays, Sundays and holidays). RCW 13.34.065. The parents have the constitutional right to be represented by an attorney at this hearing. At the hearing, the judge will listen to the evidence and arguments presented by CPS as well as the evidence and arguments presented by the parents or custodians, and make a decision about whether the child should be returned home or continue to reside outside the home. RCW 13.34.030; RCW 13.34.065.
If CPS files a dependency petition and the court decides to keep the child out of the home after a shelter care hearing, the child can be keep out of the home until CPS or the court decides that the child should return home. If CPS wants to keep the child out of the home for over 75 days, the parents have the right to a trial at which a judge will decide whether the child is "dependent," which means that child: has been abandoned; is abused or neglected by a person legally responsible for the care of the child; or that the child has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development. At trial, a judge will hear the witnesses and review the evidence submitted by all the parties to the case and will decide whether the child is dependent or not. Child Protective Services has the burden of proving that the child is dependent by a preponderance of the evidence. This is a standard well below the criminal standard of "beyond a reasonable doubt." If the Court determines that the child is dependent, CPS will have the authority to keep the child out of the parents or legal guardians home until the reason(s) for the out of home placement are corrected or until different permanent custody arrangements are made for the child. The parent or legal guardians will also be required to engage in treatment or other services meant to correct their parenting deficiencies. RCW 13.34.070; RCW 13.34.110; RCW 13.34.180.
After its risk assessment and investigation, CPS will either screen out the allegation (determine that it does not reach the threshold of abuse or neglect requiring further investigation), determine that the allegation is "founded" or determine that it is "unfounded." An unfounded, screened out or inconclusive allegation of child abuse or neglect may not be disclosed to a child placing agency, private adoption agency, or any other provider licensed under chapter 74.15 RCW. At the end of three years from the receipt of a screened-out report that alleged child abuse or neglect, the department must destroy its records relating to that report. WAC 388-15-077.
The department shall retain records relating to founded reports of child abuse and neglect as required by DSHS records retention policies. If dependency is established under chapter 13.34 RCW as to a child who is subject of a report of child abuse or neglect, all records relating to the child or the child's parent, guardian, or legal custodian, including any screened-out, unfounded or inconclusive reports not destroyed prior to the establishment of dependency or received after dependency was established, shall be retained as required by DSHS records retention policies regarding dependency records. WAC 388-15-077. The parent or legal custodian would be precluded from obtaining certain jobs, licenses, and volunteer opportunities involving children, disabled persons or the elderly. WAC 388.03.110; WAC 388.15.0600.
In order to challenge a founded CPS finding, the alleged perpetrator must make a written request for CPS to review the founded CPS finding of child abuse or neglect. The CPS finding notice must provide the information regarding all steps necessary to request a review. The request must be provided to the same CPS office that sent the CPS finding notice within twenty calendar days from the date the alleged perpetrator receives the CPS finding notice (RCW 26.44.125). WAC 388-15-085.
If CPS management staff changes the founded CPS finding, CPS notifies the alleged perpetrator that the department has changed the finding to either inconclusive or unfounded. CPS management staff or their designee must correct the department's records to show the changed finding. WAC 388-15-101.
If CPS management staff does not change the founded CPS finding, the alleged perpetrator has the right to further challenge that finding by requesting an administrative hearing. The office of administrative hearings must receive the written request for a hearing within thirty days from the date that the person requesting the hearing receives the CPS management review decision. WAC 388-15-105.
A child may be called to testify in an administrative hearing where there is a compelling reason and alternative means of providing this testimony are not adequate. If the child does testify at the hearing, the ALJ must include a written finding in the administrative hearing decision regarding the compelling reasons for the child's testimony and what alternative methods to in-person testimony the ALJ considered. WAC 388-15-177.
The ALJ will review the record of the case and apply a "preponderance of the evidence" standard at the hearing to determine whether the alleged perpetrator committed an act of abuse or neglect of a child. If the ALJ determines that a preponderance of the evidence in the hearing record supports the founded CPS finding, the ALJ must uphold the finding. If the ALJ determines that the founded CPS finding is not supported by a preponderance of the evidence in the hearing record, the ALJ must remand the matter to the department for a change of the finding consistent with the ruling of the ALJ. WAC 388-15-129.
If the appellant or the department disagrees with the ALJ's decision, either party may challenge this decision according to the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC. WAC 388-15-135.
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