Tuesday, January 1, 2013

Child Protective Services and the Sixth Amendment to the US Constitution

http://voices.yahoo.com/child-protective-services-sixth-amendment-2744288.html

 

The United States of America's citizens have a Bill of Rights granted to us in the US Constitution. Of these rights, I've regularly written about violations, such as my articles where many public school districts require children and parents to waive their Fourth Amendment rights in order to receive a free public education.

Today, I want to tackle the US Sixth Amendment and Child Protective Services. First, let me start with the Sixth Amendment. Many of you probably know this as the 'Right to a speedy trial amendment'. However, there is much more to the Sixth Amendment than that.

Let's look at the text first: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The part I want to focus on in this article is the bolded part that reads: "... to be confronted with the witnesses against him..."

Child Protective Services Procedure

There are many ways a report of alleged child abuse can occur. The only proper way is for the person suspecting the abuse to notify local law enforcement officers and let them investigate the crime. If the law enforcement officer believes there is enough evidence a crime has occurred, that officer can bring in Child Protective Services to offer services to the family.

Unfortunately, it usually happens the other way around. Generally, people report child abuse directly to CPS, and more often than not, they use the toll-free anonymous hotlines. The problem with anything that is 'anonymous' is that anyone, for any reason (including nefarious reasons) can report a suspicion of alleged abuse.

How Anonymous CPS Hotlines Circumvent the Sixth Amendment Rights

The Sixth Amendment provides that people have a right to face their accuser. In the instance of a CPS anonymous telephone report, there is no ability to face an accuser. CPS will use whatever information gathered in the hotline report to conduct their investigation, and any evidence found against the alleged perpetrator of child abuse or neglect is offered to the courts.

How this circumvents the Sixth Amendment is by letting CPS do the investigation, they are then using what is found in the investigation as the evidence against the alleged perpetrator, thus making CPS the accuser instead of the anonymous tipster.

CPS Doesn't Have the Right to Investigate

This is where knowing your rights becomes so very important. CPS does not have the right to investigate a family or children based on an anonymous CPS hotline phone call. They can attempt to perform an investigation, and if the parents or legal guardian allow them to by consenting to the investigation, they can use anything they gather or see during the investigation against the accused.

However, if all CPS has to go on is an anonymous phone call placed to a CPS hotline, and the parent or legal guardian refuses to cooperate, the only things CPS can do at that point is call law enforcement, get a court order (without evidence, this is tough) or close the case uninvestigated. This is true even when the tipster is not anonymous, because anything the tipster says to CPS is hearsay until investigated or proven by some other means, and that other means is usually found during the investigation that isn't required to happen.

Hearsay Is Inadmissible in Court

Because the accused has a right to confront their accuser, as provided in the Sixth Amendment, hearsay is not admissible in court. Therefore, CPS cannot use information gained from a CPS hotline call as evidence in court for 'probable cause' to get an order to enter a home or remove a child.

You Can Give Up Your Rights

CPS will not tell you the legalese of the pamphlets and brochures they give you, but it comes down to this: you don't have to let them in your home, you don't have to let them talk to your child, and you do not have to cooperate with a CPS investigation.

You do, however, have to cooperate with a police investigation. This is usually how CPS intimidates parents into cooperating. They will show up at your door with a police officer and ask to be let in to discuss things with you. Your response at that point should be, "I would be happy to comply, if you have a court order. Do you have an order to enter my home and search it and speak to my child?"

If their answer is, "No," your response should be: "I'm sorry, then. I cannot let you enter. Thank you." Then close the door. A police officer might come with them, but that officer knows as well as you should that he can't force his way into your home. He's there for their safety and for the intimidation factor the gun and badge and uniforms brings for the social worker with CPS.

If I'm Not Guilty...

Many people wonder why they should refuse an investigation with CPS if they know they aren't guilty. Many mistakenly assume that if they aren't doing anything wrong, nothing bad can happen to them. There are entire websites and programs and groups dedicated to the very fact that CPS can indeed find something wrong if they want to find it, even if the child is not abused or neglected.

It is in CPS's best interests to find something wrong with your household. They get paid for it if they do. If you refuse investigation by CPS, they will have no choice but to get law enforcement involved and go before a judge to get a court order.

The courts know that unless there is physical evidence to show justifiable cause that a crime of child abuse or neglect has occurred, they cannot allow CPS or law enforcement to enter your home (that's your Fourth Amendment right). The courts also know that if the only evidence CPS has is a phone call to a hotline reporting alleged abuse, that is not enough evidence to issue a court order to come into your home.

If you don't allow CPS into your home, they cannot gather evidence to use against you in a court case, and thus, you maintain your Sixth Amendment rights to face your accuser (in this case the caller/reporter of alleged abuse). Because CPS can't reveal the person, or the person refuses to reveal themselves, CPS has no choice but to close the case and leave you alone.

Protect Your Rights but Be Calm and Professional

An accusation of child abuse is stressful and frustrating at best. Please try not to take it personally, even though it might feel personal to you. CPS employees are only doing their jobs, and some of the workers do still believe they are doing the right thing and protecting children. Remember, even the employees of CPS are victims of the system for which they work. However, they do know what your rights are, and they will try to circumvent those rights as much as possible in order to do their jobs. It's not personal to most of them; it's just a job.

Stand your ground. Invoke your rights. Tell them you are not guilty, but you also know your legal rights and you choose to invoke them. If it makes you feel better, and you can afford it, contact an attorney. CPS doesn't like when attorneys get involved, because they know they have to watch their steps and actually follow the law.

Be firm, but be polite when you turn CPS away from your door. Never raise your voice, never get angry or show anger toward the social worker from CPS, and never threaten them in such a way that they can claim evidence of abuse.

The law is on your side, and it's actually on the side of your children too, if you know how to take advantage of your legal rights and require they are enforced.

Not Condoning Abuse

Please know that I do not in any way condone child abuse and that I'm not trying to say that people who abuse children should not be severely punished and the children protected. What I am saying is that law enforcement is better trained and equipped to deal with allegations and investigations of abuse than a social worker for CPS is, and that law enforcement knows how to handle evidence so that evidence is all admissible in court, so that real abusers don't walk away on a technicality. If you see abuse, don't be afraid to report it immediately to protect that precious child, but be sure to report it to the right agency - law enforcement!