This article is offered for purposes of general information and does not create any attorney-client relationship.
Any court case is emotionally difficult. Child Protective Services cases are among the most difficult. There is a lot to be said about how they work. Here I am going to give you a basic overview.
The first part of a CPS case is the report. Someone has reported that your children are being abused and neglected. This could be a concerned teacher or medical professional, it could be a neighbor, or it could a vengeful ex.
Next comes the investigation. The investigation will move more or less quickly depending on how serious the report is. If the report involves child sexual abuse or immediate physical danger to your children, it will move very quickly. As part of the investigation, CPS will talk to the person who made the report. They will also talk to your children, sometimes at school and without you knowing about it until later. And they will talk to you.
Do not worry too much about an investigation. Most investigations are closed without any action by CPS.
After the investigation, if CPS believes your children have been abused or neglected, there are several steps they may take. They may ask you to work services, which means to take drug tests, classes, counseling and similar things. They may ask you to agree to a "safety plan" in which you promise not to allow certain people around your children, not to do certain things, or even to place your children with a relative, such as your mother or father, for a time. Often, agreeing to work services or to a safety plan can help keep CPS from placing your children in foster care.
In certain especially serious cases, CPS will instead move very quickly to take your children into custody. They may also do this if you do not agree to work services, or if they feel you have not followed through on an agreement that you made.
In that case, CPS will usually go to court without you and get an emergency order to take your children into custody. The first you will know about this is when CPS arrives, often with a police officer, to pick up your children.
You will not have an opportunity to speak to the court before it allows CPS to pick up your children. However, you have a right to a full hearing soon after your children are picked up. By law, this hearing must be set within two weeks of the date the court signs the order for your children to be taken. The hearing can be pushed back one time for a maximum of two more weeks. It can be pushed back farther than that only if you agree.
At the same time that the Court orders your children into custody, it will also do some other important things. For one thing, it will appoint a lawyer to represent your children's interests. This lawyer will be very important in the case, and their opinions about what should happen with the children will carry a lot of weight. They may also be a big figure in your children's life while the case is going on, and may meet with your children frequently. The Court will also appoint a volunteer advocate for your children, called a CASA worker.
Once you know that a hearing has been set, you have a right to hire a lawyer of your own choosing. If you do this, you should be careful to hire a lawyer who has experience with CPS cases, since they are very different from other types of cases.
If you arrive at your hearing without a lawyer, the court will ask if you want a lawyer, and if you can afford to hire one. If you say you cannot afford to hire a lawyer, the court will ask you questions about your finances. In most cases, at the end of that process, the court will appoint a lawyer to represent you at no charge. You should take advantage of this.
At this point, the court has an obligation, under the law and the constitution, to hold a hearing on whether your children should be returned to you. At this hearing, CPS will have to put on proof of why they took your children into care. If their proof is not sufficient, the court is required by law to return your children to you. The only way this hearing will not take place is if you agree for your children to remain in care.
In some cases, the evidence against you will be reasonably clear cut, and you may not see much purpose in insisting on a hearing. Hearings of this sort are stressful and embarassing. However, if you are psychologically able to go forward with the hearing, it will very rarely hurt you legally to insist on it. The hearing is your right. In a few cases, parents win these hearings and their children are ordered returned immediately. Even if you do not win, you will get a clearer picture of what CPS's complaint about you is.
However, there is one major thing to think about before you insist on a hearing. If you are facing a criminal case related to the CPS case, such as if you have been arrested or are being investigated for injury to a child or child endangerment, you must be very careful. If you testify in a CPS hearing about what happened, that could hurt you in the criminal investigation. Your testimony could hurt you in ways that are not obvious, and even if you say that you did not hurt or endanger your child. Please consult with a lawyer before testifying if that is your situation. Keep in mind that you do not have to testify, even if there is a hearing, and you do not have to answer any particular question. You can instead, "plead the Fifth". However, unlike in a criminal case, in a CPS case, if you "plead the Fifth", the court may take that as an admission.
If you win your adversarial hearing, your children will be returned to you, although the Court can still order you to do services if it thinks that is appropriate.
If you do not win, your children will remain in the legal custody of CPS. This does not necessarily mean they will remain in foster care. Courts generally prefer to place children with family members rather than foster care for several reasons.
You will be asked about relatives who might be able to take care of your children instead of foster care. If a relative is identified, a home study will take place. This will mean a background check on the relative; visits to the home by CPS and the children's lawyer; and whatever other investigation CPS thinks is necessary. You should get the homestudy "expedited" if you can, since that will put it on a priority list within CPS. After the homestudy is completed, it will be reviewed by CPS officials. It may be approved or denied.
Approval or denial of a homestudy by CPS doesn't decide whether the children can go with the relative involved. Ultimately, that decision is up to the court. If all parties, including CPS, agree to place the children with a relative, the court will approve that almost automatically. But if one parent objects to placement with a relative, or if CPS does not approve a homestudy but the parents think the reasons are invalid, the court can be asked to decide the issue. This will result in a type of hearing called a placement hearing.
A placement hearing is simply a hearing by a court on whether children should be placed with a certain person, usually a relative, while the CPS case is ongoing. All parties will have the opportunity to present evidence, but this evidence is usually limited to the suitability of the relative. At the end of the hearing, the court will either order the children placed with the relative or it will not.
It is not uncommon for CPS to investigate more than one relative before finding one who is a suitable placement. It also sometimes happens that relatives who initially take the children later are unable to continue to look after them. In that case, a new placement will have to be sought.
At the end of the initial adversarial hearing, you will also be ordered to work services. CPS will request a list of services. You can either agree to that list or dispute some of them, if you do not feel they are practical for you or reasonable in your case. If there is a dispute, the court will decide it.
The services are very important, and completing them successfully will usually help you get your children back. Often, the more quickly you complete the services, the more quickly you get your children back. Some people work their services very slowly if at all. This may be because of transportation problems, or a difficult work schedule, or simply resentment of CPS. This may delay the process of getting your children back, or make it impossible to get them back at all.
That said, the service plan is not a contract. Even if you work your services successfully, CPS is not guaranteed to return your children to you. They usually will, but if they feel, and the court feels, that in spite of the services, your children are still not safe with you, your children will still not be returned.
A CPS case can go on for up to a year. What this means is the the court must either return the children or begin a trial in a CPS case within one year of the date the children are taken into custody. This anniversary is known as the dismissal date. It can be extended, but usually only one time and for no more than six months. It is not extended all that often.
During the time the case is pending, there will be a series of regularly scheduled court dates, known as status hearings and permanency hearings. The purpose of these hearings is for the court to keep an eye on what is going on in the case and to make sure the parents are informed about what CPS's plans for the children are.
There are several different ways a CPS case can end.
Many CPS cases end in a monitored return. A monitored return means that the children are returned to the parents, but CPS continues to monitor the parents for some time, often six months, to make sure that the parents continue to take proper care of them. CPS often agrees to a monitored return after parents complete their services. In other cases, a parent will ask the judge to order a monitored return, and the court will hold a hearing. Judges sometimes order these monitored returns even over CPS's objections.
In some CPS cases, CPS simply drops the case because they feel that the situation has improved to the point the children are no longer in danger. This is called a non-suit.
If the case is not resolved by a monitored return or a non-suit, the court will order the case to mediation. A mediation is an attempt to resolve the case by an agreement among all the parties. There will be a mediator, who is typically an experienced CPS lawyer. Her or his role is simply to try to get the parties to agree; they have no power to make any decision for the parties. If the parties agree on a resolution of the case, the court will almost automatically approve that agreement. If the parties do not agree, it will be as though mediation ever happened.
If the case is not resolved at mediation, it will probably go to trial. In a trial, each party will have an opportunity to present evidence and make arguments. At the end of the trial, the court will decide what should happen with the children. It may order your parental rights terminated, in which case you may never see your children again. It may order your children returned to you. Or it may order your children permanently placed with a relative.
The trial will ordinarily be before a judge. You may choose to have a jury trial instead, although you have to specify that within certain time limits. You should avoid going to trial at all if you possibly can, and if you have to go to trial, you should avoid a jury trial. This is because when courts are asked to terminate a parent's rights, they almost always agree to. Juries are even more likely than judges to sign off on terminating a parent's rights.
Fortunately, there are almost always ways to resolve your case without going to trial.