When a child presents to a hospital or physician’s office with “unexplained” injuries that could be, or are suspected to be, abusive in nature, the hospital or physician will make a report of suspected child abuse to the appropriate government entity – typically a statewide child abuse hotline or the local county child protective services agency. A case-worker from the county child protective services agency will come to the hospital or physician’s office to start their investigation.
In almost all cases, the child protective services agency will insist that the parent(s) “agree” to a safety plan – the alternative to such “agreement” is usually that the county agency will get a court order to place the child in foster care with strangers. Typically a safety plan will require some sort of separation of the child(ren) from the parents, either the child(ren) must go and stay with a relative or friend, and/or the parent(s) cannot be alone with their own child(ren). Safety plans are supposed to be temporary until the county agency completes its investigation. A parent may be told they do not need an attorney when they enter into a safety plan because the county investigation may not make a determination that the child was abused. However, failure to obtain an attorney’s advice could jeopardize the parent’s position by delaying the advice of counsel for 30 or 60 days, depending on how long the county agency takes to complete their investigation. In addition, a parent’s legal rights to the custody of their children are typically impaired by a safety plan and some county agencies do not always follow the State’s due process protections regarding implementation of safety plans. See the safety plans page for more detail on safety plans.
If the county agency makes a determination that the child has been abused, the agency will petition the court to take custody of the child away from the parents and give custody of the child to the county agency. The county will often base its petition for custody on the fact that the parents have no explanation for certain medical findings (unexplained injuries) often seen in abused children. The inference drawn is that if the parents have no explanation for these medical findings (i.e. subdural hemorrhage, retinal hemorrhages, fractures or bruises) that one of the parents is abusing the child and the other parent is covering up for the abusive parent, therefore neither parent is able to properly care for the child(ren). Anyone whose children are the subject of such a petition needs competent representation by an attorney who is already familiar with the medical issues involved in the case. Time is of the essence once you have lost custody of your child(ren) and it's critical at this point that you have an attorney with experience in this area.
Once protective custody is granted to Children and Youth Services, they almost always take the position that if a parent, especially a mother, maintains that they are not aware that the father (or boyfriend) committed any acts of abuse, that the mother is failing to “acknowledge” the circumstances that led to Children and Youth Services obtaining custody of her child and this failure to “acknowledge” the circumstances places the child at risk if returned to the mother’s custody. Children and Youth Services makes it clear that if the mother continues to maintain her innocence (and his innocence) then Children and Youth Services will keep the child or children away from their mother. This amounts to extortion against the mother that if she does not testify against the father (or boyfriend) she will be denied custody of her own children. Children and Youth Services makes it clear that in order to regain custody of her children, the mother has to “acknowledge” that the father or boyfriend committed acts of abuse.
If a physician or the county protective services agency makes a determination that a child has been abused, the police are often already involved. Sometimes the police are at the hospital within hours of a child’s admission to attempt to interview parents. In many cases, these interviews can involve some or all of the following: police officers and detectives, child protective service agency social workers, hospital social workers, physicians who claim they are experts in child abuse. In many cases, interviews with the parents are cited in affidavits of probable cause used to arrest parents. Such affidavits essentially say the doctors told the police the injuries were likely inflicted, and the parents had no explanation, therefore, the person present with the child when the symptoms first occurred or were noticed is the alleged perpetrator. While parents need to speak with medical personnel about care for their child, interviews with the police are fraught with legal danger in that such interviews are often used against parents who are criminally charged. It's advisable to not speak with police until consulting with an attorney if faced with such an interview request.
By this time the police are being told by the hospital that they believe the child has been abused by their parents, the police have interviewed the parents in order to find probable cause for arrest, and one of the parents may be criminally charged with child abuse. Once criminal charges are brought, parent(s) can be arrested, handcuffed, photographed, fingerprinted and locked up in jail. Then a bail hearing will generally be held. In cases where the child has died and the police believe it was intentional first degree murder (a charge often made in alleged shaken baby syndrome cases) no bail is set. Hopefully, an arrested parent will be granted and can make bail as these cases can take months to years to resolve, and it is best for an accused parent to wait for trial outside of jail.
A preliminary hearing will follow where a court will decide whether there is sufficient evidence to hold the parent(s) until a trial. These hearings are generally considered probable cause hearings. Probable cause does not require a lot of evidence. If a doctor says the child was likely abused, and provides a time frame for the injury that places one or both of the parents (or care taker) alone with the child, that will nearly always be sufficient to satisfy probable cause. In some states, hearsay is permitted at a probable cause hearing (i.e. the police officer testifies about what the child abuse expert physician said). Sometimes the physician does have to testify at the probable cause hearing. If so this can be a good opportunity for the parent(s)’ attorney to force the state to commit to the specifics of the alleged abuse and the timing of the alleged abuse. This is another point in which having an attorney with experience in defending against child abuse accusations becomes critical.
Parents are often so occupied with the trauma of their child experiencing a significant medical event, having to deal with a safety plan and petition for custody, and criminal charges, that the letter from the county agency that they have been listed on their State’s child abuse registry will go unnoticed, or simply be misunderstood to be part of these other proceedings. They are not. Under federal law each state must maintain a child abuse registry. This is separate from criminal court and family court petitions for custody. If a parent is on the child abuse registry they cannot work in a job that involves children such as teaching or day care. In addition, being on the child abuse registry can prevent parents from coaching, volunteering with scouting programs, church and other activities that involve children. Most correspondence from county agencies about the child abuse registry include instructions about how to appeal the county’s determination that a parent be listed on the registry. Mark Freeman has experience successfully expunging client names from child abuse registries. For more detail see the Childline page.
If a county has obtained custody of children, many counties bring actions for child support against the parents. This is the final insult to injury when an innocent parent has been falsely accused of abuse. The fact that the court has granted the county agency custody of the child(ren) gives the county agency the right to seek child support. This is true even if the child is being cared for by family members or friends. The county agency approves the family or friend for foster care and in most cases the family or friend is paid as a foster family.