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This is HUGE! For years, Child Protective Services (CPS) Investigators have taken advantage of parents’ lack of awareness of their rights because there hasn’t been a requirement to read any Miranda Rights in CPS case. However, lawmakers have FINALLY done what the Courts have failed to do.
Under a new law, CPS Investigators will now have to advise parents of certain rights upon first contact, or risk ALL collected evidence from being automatically excluded.
The mandatory verbal “CPS Miranda Rights”
You’ve seen COPS on TV and you’ve seen countless YouTube videos of police making arrests. You’re familiar with the traditional “Miranda Rights” (aka Miranda Warning) provided by police: you have the right to remain silent, you have the right to an attorney, anything you say can and will be used against you in a court of law, etc.
The term “Miranda Rights” stems from a U.S. Supreme Court Case (Miranda v. Arizona) but because that term has become synonymous with criminal interrogations, we’re going to run with it.
Let’s call them “CPS Miranda Rights.”
In a CPS case, the stakes are MUCH higher than in a criminal case because it isn’t just the parents’ life at stake, but the future of the parents’ children as well.
Under this new law, the CPS Investigator is now required to verbally read these CPS Miranda Rights to the parent or alleged perpetrator “upon first contact.” That means “Hi, I’m with CPS. Before we begin, I need to read you your rights.”
But these rights are far more expansive than what are provided in the typical Miranda Rights provided in criminal cases. Like I said, this is HUGE!
There are 10 CPS Miranda Rights that they must read to you out loud, which are:
- You have the right not to speak with any agent of the Department without legal counsel present.
- You have the right to receive assistance from an attorney.
- You have the right to a court-appointed attorney if you are indigent, the parent of the child, and the Department files suit for conservatorship, termination of rights, or to require you to participate in services.
- You have the right to record any interaction or interview with the Department, but you are advised that you may have to turn it over to the Department, law enforcement, or another party if ordered by the Court.
- You have the right to refuse to allow the Investigator to enter the home or interview the child without a court order.
- You have the right to have legal counsel present before allowing the Investigator to enter your home or interview the child.
- You have the right to withhold consent to the release of any medical or mental health records.
- You have the right to withhold consent to any medical or psychological examination of the child.
- You have the right to refuse to submit to a drug test.
- You have the right to consult with legal counsel prior to agreeing to any proposed voluntary safety plan.
Hopefully CPS begins to read parents these CPS Miranda Rights immediately because it’s the right thing to do. However, CPS isn’t very well known for “doing the right thing.” Under this new law, CPS will be required to provide this information beginning September 1, 2023, which is probably the soonest that we will expect to see them begin providing it.
That’s also when you can likely expect to see CPS begin providing the new and improved written summary.
The mandatory written summary of “CPS Miranda Rights”
Before this new law, when CPS was required to give information, it was in a convoluted pamphlet and there was no deadline as to when that had to be provided.
The CPS Investigator will now also be required to provide this written summary of these CPS Miranda Rights to the parent or alleged perpetrator “upon first contact.” That means “Hi, I’m with CPS. Before we begin, I need to read you your rights and provide you this written summary.”
The written summary of CPS Miranda Rights that CPS will now have to provide must contain:
- the known allegations the department is investigating.
- the rights provided in the verbal notification.
- your right to seek legal counsel.
- the department’s procedures for conducting an investigation of alleged child abuse or neglect.
- your right to file a complaint with the department or to request a review of the findings made by the department in the investigation.
- an explanation that the law requires the Department to refer all reports of alleged child abuse or neglect to a law enforcement agency for potential criminal prosecution.
- an explanation that any statement or admission made by you may be used:
- against you in a criminal case,
- as a basis to temporarily or permanently remove any child from you, or
- as a basis to terminate your parent-child relationship with the child who is the subject of the investigation or any other child.
- your right to review the Department’s records of the investigation, unless the review would jeopardize an ongoing criminal investigation or the child’s safety.
- the process you may use to obtain access to the child if the Department removes the child from you.
Now that you know about the oral and written CPS Miranda Rights that the Department is required to provide you, do you know what happens if they fail to provide them?
Excluding evidence collected by CPS
Have you ever heard of the “Fruit of the Poisonous Tree?”
The “fruit of the poisonous tree” is a legal doctrine that stems from the Fourth Amendment to the United States Constitution, which protects individuals from unreasonable searches and seizures. The doctrine is derived from the principle that evidence obtained illegally or as a result of an unlawful search or seizure is tainted and cannot be used against a defendant in a court of law.
Under this new law, there is a sweeping provision that excludes evidence that is illegally obtained by CPS.
If you are the subject of an investigation by CPS, and you do not receive the verbal notification and the written summary, then any information obtained from you, as well as any other information that wouldn’t have been discovered without that information is inadmissible in Court.
Here’s the real kicker. It’s not just that this information is not admissible in any CPS case, but this illegally obtained information is inadmissible against you in any civil proceeding. That means that if CPS illegally collects information from you, then that information would also be inadmissible against you in your divorce or child custody case as well.
5 Tips for your first CPS encounter
Hopefully you never get that dreaded knock at the door to find a CPS Investigator on the other side. But if you do, then here are a few tips for you to know:
- Never ignore them – don’t refuse to answer the door or return their call just because it is CPS. Ignoring them won’t make them go away. Answer the door or return their call if they leave a card.
- Always record them – CPS loves to lie about what parents say and do during that initial interaction. Create a clear record of the encounter by not speaking over each other and controlling your emotions. Don’t wait for the CPS Miranda Rights to be read to you as you should already be recording before then.
- Never let them in your house – Any information they need to give you can be done on the front porch or doorstep.
- Never agree to their drug test – CPS loves to ask for drug tests at the first encounter “just to rule it out,” which is an absolute lie. CPS asks for drug testing even when there are no drug allegations with the hope of finding additional evidence against you.
- Never answer their questions – Until you speak with an attorney, you should only ask questions instead of answering them.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1101 Broadway, Lubbock, Texas, 79401
Tel: (806) 702-4852 | Fax: (800) 985-9479