ISSUE #26, February 2004 (PDF version)
Feds Re-affirm Parents’ Rights
The recent Walsh vs. Erie County Department of Job and Family Services ruling has brought to the forefront the issue of parents’ rights. In that case, it was found that the agency had overstepped it’s authority during an investigation, and that caseworkers had not been trained in parent’s Fourth Amendment rights.
Furthermore, the Child Abuse Prevention and Treatment Act (CAPTA) of June 2003 re-affirms parents’ rights.
What are these rights, and how do these rights impact child welfare work in Ohio? The following excerpts from a guidance paper written by Howard Davidson, Director of the American Bar Association Center on Children and the Law, speak to these issues.
“The federal Child Abuse Prevention and Treatment Act (CAPTA) requires, as of June 2003, that-
County CPS caseworkers must advise every adult subject in an abuse or neglect investigation of the allegations that have been made against them, at the initial time of contact when the family’s child has been reported for child abuse and/or neglect, in a way that is consistent with federal and state laws and protects the rights of the informant (i.e., safeguarding the privacy of the identity of the reporter of the abuse and/or neglect).
In addition, the law now requires that CPS caseworkers be trained in how to conduct abuse/neglect investigations that will protect the legal rights of the child and his/her family, from the time of initiating their investigation through the agency’s involvement with the parents’ on-going treatment.
What are the implications for CPS caseworker practice of these new provisions in federal law?
The first thing that Congress clearly expects caseworkers to do – in their very first contact with the family – is to advise (notify) parents that an abuse or neglect report involving their child(ren) has been made. Second, Congress expects that caseworkers will provide some descriptive information about the nature of the allegations (i.e., that it has been alleged their child was physically abused, sexually abused, or that a specific type of “failure to protect,” lack of adequate parental care or supervision, or child neglect was reported).”
Mr. Davidson further explains, “Congress expects that sensitivity to the protection of parental rights will be on-going throughout the CPS agency’s involvement with the family. This means that even after the initial investigation has been completed that caseworkers must respect parents’ legal rights during all their continued contact with the family – when home-based child and family supervision is provided, while the child is in foster care, or after the child is returned home from foster care.
Finally, as noted above by Congress, as well as by the federal court in the 2003 case of Walsh vs. Erie County Department of Job and Family Services (240 F. Supp. 2d731), training of caseworkers concerning Fourth Amendment issues and caseworker protection of parental rights is absolutely essential. Indeed, the court in the Walsh case found the agency had not only failed to provide proper training to its caseworkers on the protection of parents’ civil rights, but that it also failed to promulgate relevant policies that would help assure such protections.”
Furthermore, the Fourth Amendment to the U.S. Constitution addresses “search and seizure” issues. Child welfare workers may not proceed with an investigation if the parent’s refuse to cooperate. However, if there are exigent circumstances, where the worker believes there is an immediate need to render assistance to the child in order to protect the child from further or imminent harm, the investigation may proceed against the parent’s wishes. Otherwise, an emergency court order for investigation (or the presence of law enforcement) is needed to proceed in these situations. A few counties in Ohio (i.e., Cuyahoga county) have developed policy and procedures for obtaining these emergency orders.
There are several training and policy development issues related to informing parents of the allegations of abuse or neglect, and to obtaining court orders to proceed with investigations when parents refuse. The Ohio Department of Job and Family Services is in the process of developing policy and training on these topics. IHS staff are working with ODJFS to include much of this information into the Caseworker Core Training Curriculum.
The OCWTP will keep you informed as policy and training curriculum is developed. In the meantime, if you would like to obtain a copy of Howard Davidson’s paper, please contact Nan Beeler at firstname.lastname@example.org.