It is a knock to the door that a parent never wants to receive. Standing in the door is a representative, a social worker, from your state’s social services agency and perhaps even one or two uniformed police officers.
Such a visit may come as a surprise or it may have been anticipated. However, the net result is that the social worker will leave your house with your child or your children. For the parent to be reunited with their child, a long and frustrating process awaits.
One of the realities of life is that children are abused, many times by those close to them, sometimes by their parents. To combat this, state legislatures across the country have enacted laws to protect children. These same legislatures have also created state agencies, usually referred to as the Department of Social Services or Child Welfare, to enforce and implement the laws designed to protect children.
Perhaps an overview of how the system works would be beneficial. I should point out that this will be a general overview and some states will likely have policies that vary from this description. I am basing this summary on my involvement in scores of such cases as an attorney who has represented numerous parents who have had children removed from their care and also on my other work representing other individuals such as Guardians ad Litem and others who have had some involvement with these types of cases.
The general way in which a case comes to the attention of a social services agency is that a report will be made. Most states have even enacted laws that require certain individuals to make mandatory reports of suspected instances of child abuse or face penalties themselves. These “mandatory reporters” generally include people such as police officers, day care operators, doctors, guardians, teachers and other individuals who have involvement with children. However, most states have laws that require the department of social services to investigate any report of child abuse or neglect.
It is rare that a social worker will go out and look for cases of child abuse. These individuals, while sometimes zealous and quick to reach decisions, have tremendous case loads and little free time to simply create more work.
Once a report is made then an investigation will begin. Not only must every report be investigated, each investigation must be completed in a set time. State law requires this. Many times I have heard people complain that they have been “set up” by an enemy, an upset neighbor, a spouse they are divorcing, or others that have it out for them. However, situations like this are common and social workers are trained to spot these issues and consider them in their investigation. It is rare that a child will be removed on the word of one person and nothing else. In fact, it is not uncommon for investigations to be opened and closed with the parent of the child never knowing of the investigation. However, let’s say that the investigation does reveal some information that suggests inappropriate conduct, questionable activity or sometimes simply conduct that gives the social worker concern.
Most social service agencies have the ability to implement an internal action plan to remedy the situation without removing the child from the home or involving the Court. However, if the abuse or neglect is severe enough, the social service agency can apply to a judicial officer or judge for an order allowing the agency to take custody of the child. This application may be completed without the parent being made aware of the removal and the social services agency can even go to the Court without the parent being told an application is being submitted to the Court. If the Court is satisfied a child is at risk or has been abused or neglected, an Order for Removal will be signed and then the social worker and the police will appear to take the child for placement in protective custody. So when someone says that some agency took their children, this is not correct, the Court ordered the removal, the agency simply carried out the Court’s order.
The point here is that there are numerous safe guards to prohibit a social worker from simply making a removal – in fact, it would be illegal, we in the legal community call it kidnapping – for a social worker to simply take a child on their whim. Even at the agency stage, any action is reviewed by the social worker’s supervisor before any action is taken. The Court realizes the importance of the parent/child relationship and places the burden of proof in a removal situation with the state. The result is that it is extremely rare that children are removed for no cause. It has certainly happened in the past and will certainly happen again, but if it does, there is a mechanism in place to remedy the situation. It has been my experience that in the rare case of inappropriate removal, reunification between the parent and the child is quick.
If a child is removed, the parent has numerous rights that can be exercised immediately. For example, when the order is signed for the removal of the child from the home, the parent gains the right to have a full hearing on the matter where the state will have to meet their burden of proof for the removal. If they can’t, the child is returned. It is likely that a speedy hearing date will be set at the time the removal order is signed and the parent will be given notice of the hearing at the time the child is removed. The parent is also entitled to an attorney to represent them.
It is important that parents understand that the entirety of this process is set out in state law, so while it may appear that the social worker or social services agency is “making up the rules” as they go along, the process is set and works, from a procedural standpoint, the same for everyone – only the facts of the case are different. People should also understand that the social services agencies are there to facilitate the reunification of parents with their children. This may appear to be a fallacy to many people; however, the state has limited resources and cannot afford to, nor should they arbitrarily go out and make children wards of the state. However before children can be reunited with their parents, the social services agency and the Court must be satisfied that the child will be safe following the reunification. This is where counseling, psychologist, home studies and other procedures may have to be followed. As well, parents that appear reluctant to acknowledge obvious wrongdoing or follow the order of the Court will have a difficult time in the process.
As a case proceeds through the Court different things will happen. At the initial hearing, the Court will make a determination as to whether there was cause to remove the child from the home. The parent will be informed of their right to have an attorney. As well, the social services agency will likely begin to address a treatment or reunification plan that is designed to return the child to the home. The parent will have the opportunity to review the plan, with their attorney, and determine if they want to accept the plan. If the plan is accepted, the process of reunification can begin. If the parent does not agree with the cause for the removal or with the plan, then they are entitled to have a full trial on the matter. If the plan is accepted by all parties, reunification could, in come cases, be immediate. However, this is the point where most people become extremely frustrated with the process as they can’t understand why it cannot be immediately wrapped up.
Any legal proceeding takes a great deal of time to run its course. There are simply not enough judicial resources to move matters along. It can sometimes take a year, perhaps more, to bring the matter to trial.
So the question becomes, what can a parent who has had a child removed from their care do?
The first thing they can do is immediately hire an attorney at the first hint that a social services agency is investigating them or their children. Once the attorney is retained, follow their guidance. The attorney that is hired should be one who has experience with social services agencies. Perhaps the worst thing that a person can do is attempt to act as their own attorney. There is a specific procedure that will be followed through the life of the case and unless a litigant is skilled in the process, the result will likely be more harm that good. Litigants are emotionally invested in the case and while the Court understands a parent’s love for their child, any emotionally vested or non-relevant arguments will do nothing to advance the case. Many people will say that attorneys are too expensive, that they can’t afford one or there are none available that will take their case. Yes, attorneys, good ones, can be expensive; however, to make this argument where the stakes are a parent’s relationship with their child is to place a price on an otherwise priceless relationship. Do anything necessary to get the money to hire the best attorney – mortgage your home, sell property, borrow money, use your credit cards, do anything except fail to hire an attorney.
A parent should also realize that the matter will not simply “go away.” The matter must be addressed.
Perhaps most importantly, a parent who has had a child removed should refrain from making attacks on the social service agency, foster parents, other parties or otherwise attempting to focus the attention of the case elsewhere in the case. Courts take a dim view of this. A proceeding focused on child abuse or neglect in a family court is not a criminal matter and there is no presumption of guilt or innocence. In fact, if the state is required to prove their case to the Court at trial, the standard they have to meet to win their case is much lower than the criminal standard and if a parent makes the argument that the social services agency is out to get them or the foster system is destroying their family, the Court could look at this as evidence against the parent.
While overall, a child abuse or neglect case will be contested if it is before the Court, most of these cases settle. Those that don’t are generally ones that the parent refuses to cooperate or follow their attorneys’ guidance or one of the rare cases where there was no basis for the removal and the matter must be litigated.
Overall, if a parent is caught up a child removal case, realize that the state understands your relationship with your child and that it is in their interest as well to foster the parent/child relationship. Hire and attorney and follow each and every bit of advice they give you. Do nothing, talk to no one and don’t sign anything without your attorneys’ approval. Realize that things are not going to happen immediately and that the case may take some time to run its course. Do not take the role of the victim and pronounce that the state or anyone “has it out for you.” This will further complicate an already complicated matter. As the case moves along you will be allowed to see your child and may have physical custody returned to you.
I said earlier that it is extremely rare for children to be removed as a result of a mistake or where nothing has happened. In virtually every case I ever handled, initially the parent, often in the face of overwhelming evidence of abuse or neglect, refused to accept any responsibility for their actions or to understand how their conduct lead to the removal of their child. However, in virtually every one of these cases, these same parents were quick to point out that there were many parents that harmed or abused their children and that the social services agency should be dealing with these cases. I am sure if I asked these other parents who had had their children removed they would have provided a similar overview of the process. The nutshell of this is that we live in a reality where children are harmed and abused.
The duty to protect these children falls to the state and laws have been enacted to address this situation. Should someone not like the system or the way it operates, the answer or remedy lies not in attacking the social service agencies, the social workers or foster parents. Sure there have been cases where corruption or even incompetence has been shown, but this is the exception rather than the rule. If someone dislikes the system, the answer to the problem, the path to change it to take the matter up with your elected officials and have the law changed, but wait until you have been reunified with your children – they are the number one priority in this process.
