After a domestic violence incident where children witnessed the abuse or were first-hand victims of abuse, law enforcement reports the incident to Child Protective Services (“CPS”). CPS is required by law to investigate reports of suspected abuse quickly. As a result, a CPS social worker will contact the abused parent to find out if the children are safe. The social worker may seek to interview both the victim and the children. The call may come within 24 to 48 hours of the incident. The abusive partner may still be in jail or may already be home. The abused partner may or may not be ready to separate, and may be traumatized by the incident, the law enforcement response, the family response, or any number of other factors.
During this time the abused parent is engulfed in a swirling cloud of conflicting emotions: fear, confusion, anger, relief, sadness, and uncertainty to name a few. The abused partner may or may not be ready to betray their partner and break the silence by disclosing private, intimate, shocking family secrets. It is extremely difficult and scary to face the decision of whether to work with the government to bring the full weight of the legal system to bear against their life partner and children’s parent. Having to make that decision alone, while experiencing trauma in the blink of an eye is a herculean task for anyone. The consequences of the rapid decision are long-lasting, such as:
- Fully disclose and deal with the wrath of the abuser, lose control of what law enforcement, the district attorney, social workers, and the court may decide about the survivor’s family.
- Fully disclose and gain assistance to leave the relationship.
- Refuse to disclose, minimize the abuse, or lie to protect the child’s parent and face the consequences of a lost opportunity to escape, risk of perjury, face court orders to testify, and risk creating a false record thereby undermining credibility in later proceedings.
This article provides some information to consider when faced with this difficult situation. This is no replacement for obtaining legal advice for an experienced attorney about your specific circumstances.
What is the role of CPS?
The job of CPS is to ensure that children are safe. Specifically, CPS is focused on the most extreme cases of physical non-accidental harm, serious emotional damage evidenced by severe anxiety, depression, withdrawal, sexual abuse, severe malnutrition or nonorganic failure to thrive, willful/negligent failure to provide adequate food, clothing, shelter, medical care, or supervision. The law provides that exposure to domestic violence, even if a child suffers no physical harm, can constitute a failure to protect a child from the substantial risk of encountering the violence and suffering serious physical or mental harm, thus causing CPS to intervene.
The San Francisco Department of Child Protective Services known as Family and Children’s Services (FCS) Division of the Human Services Agency (HSA). FCS works within the legal authority of the San Francisco Superior Court, Juvenile Division. Other California counties’ equivalents of FCS operate in a similar manner with slightly different names like the Department of Family and Children Services (Santa Clara), or Child Protective Services (San Mateo), or Department of Children & Family (Alameda). These departments are colloquially referred as CPS.
When doing their investigation, CPS evaluates further involvement through one of three response “paths.” This family-centered, community-based approach is known as the Differential Response model. Below is a quote (emphasis added) from the FCS “Parent’s Handbook About Child Welfare Services” describing the three paths:
Community Response (Path 1)
If the ER social worker determines that the child is safe, the allegations are “unfounded” (found not true) or “inconclusive” (uncertain if allegations are true), and that there is a low risk of future child maltreatment, the referral will be closed. If the family might benefit from community resources and support, the worker may refer the family to a community-based organization. There is no further involvement by Family & Children’s Services.
Differential Response (Path 2)
If the ER social worker determines that the child is safe, but the allegations are “substantiated” (found to be true), and there may be future risk of child maltreatment, the referral will be closed. The family will be transitioned to an appropriate Differential Response Family Resource Center or community-based organization that will provide voluntary case management to the family. There is no further involvement by Family & Children’s Services.
Traditional Child Welfare Services Response (Path 3)
If the ER social worker determines that the child is not safe, the allegations are “substantiated” (found to be true), and there is high risk of child maltreatment, the referral will be closed and a Family & Children’s Services case will be opened.
How do I ensure the children’s safety?
Because CPS will be assessing whether the children are safe, the most pressing action an abused parent may wish to take in the wake of a domestic violence incident and CPS investigation is secure the safety of the children. Securing the safety of the children can include separation (temporary or permanent) from the abusive parent, obtaining a 7-day emergency protective order from law enforcement, obtaining a 3-week domestic violence restraining order in family court, enrolling the children and parents in therapy, attending domestic violence group therapy, enrolling in drug or alcohol abuse programs, and obtaining agreement from the abuser to do the same and/or attend domestic violence batterer’s intervention program, etc. By securing the children’s safety, the parent minimizes the likelihood that CPS will take further action and increases the likelihood that the parents will remain in control of the destiny of their family.
Do I have to speak with CPS?
No. A parent may refuse to speak with CPS. However, bear in mind that CPS is required to determine whether the children are safe. Refusal to speak with CPS may prevent CPS from knowing whether the children are safe which could cause them to take more drastic steps.
If an abused parent does speak with CPS, it is important to know that anything said can be used against the abused parent or the other parent in either a criminal case or a juvenile dependency case. However, lying, minimizing, or convincing your children to lie about or minimize the abuse can also be used against the abused parent later. For example, if the abused parent later wants to divorce or separate and get a child custody order or restraining order in the family court, the abuser can use the abused parent’s earlier denials in the custody proceeding. Therefore, the abused parent must carefully weigh the desire to protect the abuser from legal consequences now against the need to protect themselves and the children now or later.
It is possible to share enough with CPS to confirm that the children are safe, without oversharing to cause liability for either parent. A person has a right against self-incrimination and may refuse to answer some questions about their partner absent a valid court order to do so. It is acceptable to answer a question with an answer, “I am not comfortable answering that question” or “I invoke my 5th amendment right against self-incrimination.” It is also acceptable to hire a lawyer and refer all questions to the lawyer or have the lawyer accompany the parent to the CPS interview.
Do I have to allow CPS to speak with my children?
No. A parent may refuse consent to speak with their children. However, while a parent can withhold consent to speak with their children, CPS has the legal right to interview children at school regarding allegations of child abuse (including exposure to domestic violence) if they have (1) a court order or warrant, (2) parental consent, or (3) exigent circumstances. Exigent circumstances include current allegations of exposure to domestic violence. Therefore, if the parent does not consent, CPS may choose to interview the children at school or seek a Court order.
The abused parent must weigh whether an interview at home or at school would be better for the child. If the children have already been interviewed by law enforcement, it is reasonable to ask whether further interviews are necessary or could be deferred to avoid re-traumatizing the children. It is also possible for the parents to hire a lawyer for the child, separate from their own lawyer.
Do I have to let CPS enter my home?
No. CPS social workers may enter a home for an investigation only if they have parental consent, exigent circumstances, or a warrant issued by the Court authorizing entry. Be aware that consent may be actual (yes, you may come in) or implied (nonverbal e.g., nodding, standing aside and waving the hand, etc.).
A situation is considered exigent for the purpose of entering the home without consent if there is information that a child is in imminent danger of serious bodily harm and immediate action by CPS is reasonably necessary to avert that specific injury.
Thus, a parent may refuse to allow CPS into their home. However, CPS is required by law to investigate reports of suspected abuse. Without the parent’s consent to enter the home for an interview, they may return with a Court home entry order served by law enforcement.
Can I stop the interview once it is started?
Yes. The parent can stop the interview and withdraws consent to be in the home after CPS has begun the interview and entered the home at any time. If so, CPS must leave. For it to be effective, consent must be freely and voluntarily given. If CPS attempts to gain consent by duress, coercion, or force, such consent is not valid.
Children need both parents, so shouldn’t I protect the other parent?
Yes, it is true that the more loving adults in a child’s life the better for the child. The California Supreme Court explained it beautifully, “Contemporary psychology confirms what wise families have perhaps always known-that the essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of “togetherness” committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. The source of this guidance is the adult’s own experience of life; its motive power is parental love and concern for the child’s well-being; and its teachings deal with such fundamental matters as the child’s feelings about himself, his relationships with others, his system of values, his standards of conduct, and his goals and priorities in life.” In re Marriage of Carney (1979) 24 Cal.3d 725, 739.
It is also true that children are severely harmed by exposure to domestic violence and such exposure is considered an adverse childhood experience. The term Adverse Childhood Experiences (ACEs) comes from the landmark 1998 study by the Centers for Disease Control and Prevention (CDC) and Kaiser Permanente. (See Felitti VJ, Anda RF, Nordenberg D, et al. Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults, American Journal of Preventive Medicine 1998; 14: 245–58, Dube SR, Felitti VJ, Dong M, Giles WH, Anda RF.) ACEs are linked to chronic health problems, mental illness, and substance misuse in adulthood. ACEs can also negatively impact education and job opportunities. ACEs can have lasting, negative effects on health, well-being, and opportunity. For more information on ACEs, please visit the following website: https://www.acesaware.org/treat/principles-of-trauma-informed-care/
Additionally, the California Attorney General’s Office produced this 15-minute video explaining the lasting impacts of domestic violence on young children and their brain development. https://www.familyjusticecenter.org/resources/first-impressions-exposure-to-violence-and-a-childs-developing-brain/
CPS understands these negative impacts on children. Mental health and public health researchers have greatly advanced their understanding of the impact of domestic violence on children. However, many people, including parents, judges, teachers, and other important adults in children’s lives continue to underestimate the impact of exposure to domestic violence on children. Armed with this information, abused parents can consider the abusive parent’s positive contributions and the harm caused when deciding how to engage with CPS or what actions to take on their own.
Will CPS remove the children from me?
If there is a risk of ongoing exposure to domestic violence, CPS may determine the children are not safe. There have been cases where children have been removed from parents who continue to expose children to recurring domestic violence. A 2020 juvenile court case stated, “[e]ven if a child suffers no physical harm due to domestic violence, a cycle of violence between … parents constitute[s] a failure to protect [a child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. A parent’s denial of domestic violence increases the risk of it recurring. When the evidence is viewed in the foregoing light, i.e., the light favorable to the Department, we conclude a reasonable trier of fact could have found it highly probable that placement of minors with father would pose a substantial risk of them being harmed by exposure to future domestic violence, and that there were no reasonable means to protect minors without removal from father’s physical custody.” In re V.L. (2020) 54 Cal.App.5th 147, 156–157 (internal citations and quotation marks omitted.)
It is also true that as long as there is a protective parent, CPS should not open a Court case to remove the child. In the case In re A.G.(2013) 220 Cal.App.4th 675 the Court specifically stated that it is the jurisdiction of the family court to address a case with one abusive parent and one protective parent. As a result, CPS should never open a juvenile court case so long as there remains one parent who is willing and able to secure the child’ safety. It is only if one parent is abusive and the other parent is unable or unwilling to protect the children from the abusive parent that the CPS and the juvenile court may intervene to remove a child.
