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What
do to When Faced with By:
Bradley Coates Coates
& Frey has been one of Hawaii’s largest family law firms for the
last couple of decades. In the past, this has usually meant handling
divorce cases, adoptions, guardianships and other typical family related
matters. Recently however, a rapidly expanding share of the firm’s
practice now falls into the area of assisting parents who face Child
Protective Services (CPS) cases and/or charges. This once arcane and
little-known area of practice has increased significantly since more than
3,000 CPS cases are now being filed in the Family Court each year. Child
abuse or neglect as defined in the Hawaii Revised Statutes includes:
serious injuries or medical problems (which are not justifiably
explained), sexual contact (including pornography), drug use,
psychological injury which substantially impairs the child’s ability to
function, and failure to provide food, shelter, medical care, or
appropriate supervision. Hawaii’s Child Protective Act covers threatened harm as well as actual harm to a child. Upon
receiving a report, CPS is required to investigate the complaint. The
investigation is possibly the most important phase of any CPS case. How
parents respond during this phase is crucial, because it sets the stage
for all that follows. Parents often treat the CPS worker as an accuser.
They become defensive, challenge CPS authority or motives, and/or threaten
legal action. This response generally poisons the relationship and turns
the CPS investigator into an adversary instead of an ally. The better
approach is to be a concerned and cooperative parent, and to recognize
that the CPS investigator is legally authorized to speak with the child or
siblings (without parental permission), and if necessary, to have the
child examined by a health professional. Where there are reasons to
believe that the child faces “imminent harm,” a CPS investigator or
police officer may take the child into immediate protective custody. In
most cases, even where abuse has been confirmed, CPS will often ask the
family to enter into a “voluntary service plan” in order to keep the
matter out of court. Where
an out of court solution is not an option, CPS must file a petition in
Family Court. If a child has been taken into protective custody, the
petition must be filed within two working days. At
the first hearing, the Family Court will make several temporary orders and
will normally also appoint a guardian ad litem (GAL) to serve as the
attorney for the child. A trial date will then be set, although many cases
are settled prior to the trial when the parents and CPS can enter into an
agreement. If not, the matter goes to trial. If the allegations in the
petition are proven to the court’s satisfaction, the petition will be
granted and the court will proceed to the next phase of the case. If
a petition is granted – either by agreement or after trial – CPS must
then prepare a “service plan.” The goal of the initial service plan is
two-fold. First and foremost, the plan must provide for the safety of the
child. Second, the plan must address the needs of the parents – keeping
(or reuniting) a child with the parents is a priority. The
service plan, along with the family’s success or failure, will be
reviewed by the court every six months. Where the plan has been
successfully completed, the case should be dismissed and CPS involvement
should be terminated. Where the plan hasn’t been successfully completed,
the court’s focus shifts from reuniting the parents and the child(ren)
to finding a permanent out-of-home solution, such as long-term foster care
or adoption. At
every stage of the proceeding, it is crucial the parent(s) are represented
by an attorney who understands the CPS system and has expertise in family
law. The attorney can facilitate the flow of crucial information between
CPS and the parents. An attorney retained early on in the process may even
keep the matter out of family court altogether. Bradley A. Coates, J.D., has been
a practicing divorce attorney in Honolulu for over 20 years.
He has been selected as Honolulu’s Best Divorce Lawyer and is the
founder of Coates & Frey, Hawaii’s largest family law firm. Mr.
Coates, who authored, “Divorce with Decency:
The Complete How-To Handbook and Survivor’s Guide to the Legal,
Emotional, Economic, and Social Issues,” can be reached at 524-4854 or
at the firm’s web-site:
www.coatesandfrey.com. |
