Learning that you are under investigation from Michigan's Children’s Protective Services (CPS) can throw your life into upheaval. Along with serious legal ramifications to worry about, you likely have many questions about how this process works, what your rights are, and how you should proceed.
Below, we have compiled a number of frequently asked questions our Michigan attorneys have heard over the years. Keep in mind that you should not take this as advice in a particular case. For more information on the specifics of your case, contact our knowledgeable and experienced Lansing Child Protective Services attorneys today.
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What is CPS?
Children’s Protective Services (CPS) is a division of Michigan's Department of Health and Human Services (DHHS) that is in charge of investigating suspected child abuse or neglect. After an investigation, the agency can file a Petition in Court that seeks to require services, remove the children from the home or terminate the parental rights of one or both parents.
Can CPS enter my home?
CPS investigators are not technically law enforcement, but they do have similar legal means to enter private property if they suspect child abuse or neglect is taking place (or has taken place). Parents have Constitutional rights which come into play because CPS is a governmental agency. There are essentially three circumstances in which a CPS worker can come into your home.
These circumstances include:
- If you give consent
- If there is an emergency situation
- If CPS has a warrant or court order allowing them to enter or remove children
If CPS shows up with a police officer, do I have to let them in?
The presence of a police officer does not really change anything. If CPS shows up with the police, or even without the police, you have to let them in if they have a court order that allows them access or a warrant. Without that documentation or some emergency, you can deny access.
Should I let CPS into my home?
This is actually a more difficult question. There are times when you should and times when you shouldn’t. Parents generally let CPS in because they are afraid not to or because they think it will look bad if they don’t cooperate. Our best advice is to get an experienced attorney on the phone right away and get some input. Our advice on questions like this is always going to depend on the facts of the matter. Therefore, we don’t want to give absolute answers without knowing a lot more about your case.
What if CPS or police force their way into my home?
That would usually be a Constitutional violation, but it is not a good idea for you to try to stop them from breaking the law; especially with the police involved. If, there has been a decision made to deny access, then make that decision clear by saying something like, “I want to make it clear that you do not have permission to enter my home.” At that point, if they are going to break the law, leave it for your attorney to deal with. Don’t argue, yell, or swear and don’t do anything to physically interfere. Doing any of those things may get you arrested, and it probably won’t stop them from coming in illegally.
Can CPS interview my children at school without my permission?
Yes. Michigan law is not very helpful on this point. If CPS determines that they need to talk to your kids without notice, (and somehow they always determine that,) the school has to cooperate and let them. They have an obligation to notify you afterwards, but not before. Telling them not to talk to your kids or telling the school not to allow it will have no affect other than to make you look uncooperative (which, to CPS, is a cardinal sin.) There are some options, however, which can be helpful if you get an attorney involved early enough.
Do I have to talk to CPS?
No, of course not. This is America. You have Constitutional protections against governmental action. This means that you don’t have to talk to the police, CPS or any other governmental investigator. That is not the same as saying that you should not talk to them, but you certainly don’t have to. The best plan is get an attorney involved quickly and decide together if you are going to talk to them. If the answer is yes, you should do so only with your attorney present and after discussing your entire situation with your attorney. CPS workers have a job to do. That job often involves bringing a case against you in court. Supplying evidence to them out of fear or coercion does not make a lot of sense. Supplying evidence that can be used against you makes no sense at all in most cases. Consulting with an attorney before you decide whether to help CPS makes a lot of sense.
What Is a "Lawyer Guardian Ad Litem?"
In a neglect/abuse case, a Lawyer Guardian Ad Litem (LGAL) is an attorney appointed by the court to represent the best interests of a child named in a Petition. Ideally, this specially trained attorney will review the history of the CPS case and have regular contact with the child to discuss procedure and collect information. These discussions with the child are confidential. The LGAL will also be present during court hearings and make recommendations regarding important issues in the case. It is very common for the prosecutor and the LGAL to align their positions and even sit at the same table in the courtroom. This can cause consternation with some parents who feel like the LGAL is a “second prosecutor.”
One important difference between an LGAL and any other attorney is that an LGAL is not obligated to advocate for the outcome desired by the child. This can create a conflict of interest when a child wants to return home and the LGAL does not think that is best for the child. An LGAL is obligated to advocate for the outcome that he/she believes is best for the child. (Somehow, this usually, but not always, agrees with the position being asserted by the prosecutor.) When a conflict of interest exists, the parents can hire an attorney for the child who functions like any other attorney, advocating for the outcomes that the client desires.
Does my child need an LGAL?
Perhaps not, but under Michigan Law and courtroom procedure, if you are defending a Neglect/Abuse Petition, your child will be appointed an LGAL. If a child and their LGAL disagree about what is in their best interests, the LGAL must report that conflict to the court. Children are not allowed to fire their assigned LGAL.
If a child is old enough to make decisions for themselves, the judge may appoint a lawyer to represent the child in addition to the LGAL.
What is a "Court-Appointed Special Advocate?"
A Court-Appointed Special Advocate (CASA) is another court-appointed individual sometimes necessary in CPS cases. CASAs are very similar to LGALs, except that they are volunteers and not usually attorneys. Not all Michigan courts that hear CPS cases use CASAs. A family oriented CASA can be very helpful, however, because they are advocates for children, some of them are more focused on protecting your children from you than trying to work with you. So, parents who are working with a CASA need to go into the process with their eyes open and look for ways to make the relationship work. Best advice: Talk you your attorney about how to work with the CASA if the court orders one to be involved.
Who is responsible for costs of court-appointed personnel?
Unfortunately, the costs of all court-appointed attorneys in CPS cases (the LGAL and all appointed parent attorneys) are incurred by the family in question. When CASAs are volunteers, they should not result in further costs for the family.
Should I submit to drug testing?
Probably not, but definitely not without talking to your attorney. It has become standard in many counties for CPS to ask for drug testing for parents. This is true even when drugs are not the issue that brought them to the home. If you are being asked for a drug test, it is okay to tell them that you want to talk to an attorney about your rights before you give them an answer. If someone is going to refuse a drug test, it is far better that CPS hears that from the attorney than the parent. A drug test is considered an invasive procedure and CPS is not able to demand a drug test without a court order or warrant.
CPS wants me to sign medical releases. What do I do?
Best advice: Don’t sign anything without reviewing the request for information with your attorney. When I am working with a family, I insist on reviewing every document that my client is being asked to sign. Sometimes it is best to not sign any releases at all. Sometimes, it is best to carefully limit the information that we are willing to provide. CPS has a general release form that they like to use called an Authorization to Release Confidential Information (DHS-1555-CS). I almost never allow my client to sign this without carefully limiting the information that is authorized for release. It is also a good idea to review the records requested before they are released. For example, most people have no idea what health care professionals are writing in the medical chart of their children. Day care records and counseling records can be full of biased or harmful information. Taking the “I don’t have anything to hide” approach can be harmful to your family.
The CPS worker seems nice, why not just cooperate?
Remember when your mom used to say, “If your friends were all jumping off of a bridge, would you?” Think of it this way, if you were to encounter a very nice, very friendly police officer who was working very hard and very politely to get evidence from you to be used to put you in prison, would you want to help him? No, of course not. CPS workers are government investigators. The only difference is that they can’t arrest you, but they can ask a court to take away your parental rights. To most parents, that is far worse than being arrested. So, you only want to help them in their investigation when doing so is in the best interest of your family. It does not matter whether they are nice or rude, your decisions should be based entirely on what is best for your family. That is why you want to consult with an attorney as soon as you know or suspect that there is going to be an investigation.
How do I choose a good CPS defense attorney?
This may not be an easy process. When I started practicing in the area of Children’s Protective Proceedings (a while ago) I was disturbed by the quality of parent defense in many courts. I am less critical of court appointed attorneys than I am of a system that relies on court appointed attorneys and then does not adequately equip and compensate them. For example, with a complicated medical case, it is going to be very difficult to get an experienced court appointed attorney who understands the medical issues well enough to handle the matter, and has the time to invest in the case. The economic incentive is often inadequate for the attorney to push other work aside and give the parents the time and attention they need and deserve. I spend a fair amount of time working with attorneys on these cases, trying to improve the practice. My policy is that I will always consult with a court appointed attorney who is trying to help their client with a difficult case.
For parents who are fortunate enough to have resources or enough family support to hire a private attorney, I would offer these tips:
- Look for an attorney who understands your issues. For example, if you have a case involving medical issues, look for an attorney who has gone to trial with medical defenses, has contact with medical experts willing to help in court, and has won trials with similar issues.
- Look for an attorney who you are willing to work with. I know this seems like an odd thing to say, but clients win cases, not attorneys. For you to have any chance of getting an end result that makes you happy, you are going to have to roll your sleeves up and go to work. In doing so, you are going to have to have an attorney who will work with you. One of my first questions when I am called to look at a case for appeal is usually, “How much time did you spend with your trial attorney?” You need an attorney who will spend a lot of time with you if you are going to get a good result. Therefore, you are looking for someone who you are comfortable working with.
- Do your homework. Ask the attorney how much experience he or she has. Don’t be afraid to ask if the attorney has ever won a trial like yours. Experience matters, but it is not the whole picture. I won my first trial with no real experience at all. You may have an inexperienced attorney who is ambitious and bright and effective in the court room. Check the attorney out enough to form an opinion about how competent he or she is.
- Consider what others are saying. Read reviews and consider what other attorneys are saying. This can be tricky because there is a lot of negative information out there from anonymous sources or people with an ax to grind. Beware of ratings on the web. They provide information that should be considered but may not present the whole story. For example, I am an AVVO 10.0 rated attorney. I love AVVO.com and often send people there to look for an attorney. Yet, I never tell people to hire a 10.0 attorney. Why? Some attorneys are better at marketing than others. A 10.0 rating is AVVO’s top rating and it is information you should consider but it’s not the whole picture. I know some very good attorneys that have much lower ratings.
- Get a referral. If you have a relationship with a business attorney or the attorney who wrote your family trust, ask her who she would hire if she had a case like yours. Attorneys in other fields of practice often know who is doing good work in other practice areas.
- Ask me. I am serious. I know attorneys all over Michigan and may have some suggestions for you. I understand that my firm is not right for every client, we can only handle only so many cases, and many client’s can’t afford our services. If for any reason we are not the firm you, we still may be able to make a referral that you could consider.
What is Your Question?
If you have a question that you think would be generally helpful for parents, send it to us using the question form on this page. If we agree, we will post a general answer on this page. If we think it is too specific to post a general Q & A, we will send our response to you only and not post the question. Either way, we invite your questions. Use the form below:
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