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Know your rights in DCS investigation, attorneys say

Posted at 5:59 PM, May 24, 2017
and last updated 2017-05-24 18:55:35-04

The Indiana Department of Child Services hotline has seen a 20 percent increase in child abuse and neglect reports since 2012, records show.

While child advocates are encouraged more Hoosiers are reporting suspected abuse and neglect, the increased reports also mean more innocent people could be finding themselves the subject of a DCS investigation.

A DCS investigation can start with a neighbor, teacher, coach, family member, doctor, or anyone who perceives your child is being neglected or abused.

DCS often protects children and saves lives, and part of their job can involve removing children from the home.

However, the state agency makes mistakes, according to families, attorneys and the DCS Ombudsman.

RELATED | Ombudsman details what's right and what's wrong with Indiana Department of Child Services

With 600 calls to the state hotline every day, it’s important to protect yourself if DCS comes knocking.

Julie Baumer of Michigan was wrongfully accused of shaking her sister’s baby, whom she had taken in and offered to adopt.

An expert later proved little Phillip suffered a stroke, not trauma. However by then Phillip had been permanently adopted. Baumer had no right to see him.

Bryan Ciyou is an Indianapolis attorney who has represented families in cases involving DCS, and said even the innocent can find themselves under investigation for child abuse.

“It can happen to anybody,” said Ciyou. “It’s a phone call or an allegation.”

A DCS investigation can start at a hospital with an unexplained illness or if your child says something at school that raises a red flag.

“A doctor can make a report, a therapist, a teacher, and DCS has to investigate,” said Ciyou.

Ciyou said false allegations happen, such as in custody battles, so it’s important to know what your rights are.

“A lot of it is fabricated, but the problem is trying to disprove something that never happened,” said Ciyou.

You have the right to ask for identification from a DCS worker, ask what the allegations are, and consult an attorney first before responding to DCS.

You do not have to let DCS inside your house.

“What happens is, you get sucked in, and ‘oh just talk to us for a little bit’, but they’re in the house and they’re looking around,” said Ciyou.

Robert Schembs, an Indianapolis attorney with experience in representing families in DCS cases, said if you don’t let DCS into your home, they can get a court order or warrant to force entry if they have any evidence of suspected abuse or neglect.

“The advice I normally give is to call an attorney as early as possible,” said Schembs. “If they want to take statements from the kids, they’re allowed to do that.

DCS can talk to your children without telling the parent first, said Schembs, such as at school.

“They have to have reasonable cause to do that,” said Schembs. 

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Make sure to get a copy of any warrants or court orders.

Know any information you share with DCS can be shared with prosecutors, who could use it for criminal charges.

You can face a DCS investigation without ever facing criminal charges. Ciyou suggests documenting everything.

“Write down everything you can think of that relates to it, so that can be used for a defense attorney in trying to address it,” said Ciyou. 

Other attorneys suggest recording all interviews and interactions with DCS.

If DCS decides to remove children from your home or file a Child In Need Of Services (CHINS) case against you, you have numerous rights that kick in, including the right to a free, court appointed attorney.

A family case manager with DCS must give you the following list of rights if your children are removed or a CHINS petition is filed.

1. The right to have a detention hearing held by a court within forty-eight (48) hours after the child’s removal from your home. The 48 hours does not include legal holidays and weekends. At this hearing, you may request that your child be returned to you.

2. The right to hire an attorney or request to be represented by a free court appointed attorney. The Court may appoint a free attorney to represent you if the court finds that you cannot afford an attorney, there is a likelihood that you will win based on the facts of your case, and you lack the ability to investigate and present your case without an attorney.

3. The right to cross-examine witnesses. You or your attorney may ask questions of the people who are testifying at the court hearing.

4. The right to present evidence on your own behalf. Any information or evidence that you have about the allegations of child abuse or neglect should be given to your attorney to present in court. You also have the right to present your information on your own, if you do not have an attorney to represent you. You have the right to obtain witnesses by subpoena under Indiana Code 31-32-2-3.

5. The right not to make statements that incriminate you. “Incriminate” means that the things you say might be used to prove that you were involved in a crime or that you were responsible for the abuse or neglect of your child or other wrongful act. Incriminating statements may be used in a court hearing on a petition that alleges that your child is a Child in Need of Services.

6. The right to request to have your child’s case reviewed by the county Child Protection Team. The Child Protection Team is a group of persons from the community who advise the Department of Child Services. The Child Protection Team may review any complaints regarding child abuse and neglect cases that are brought by a person or an agency.

7. The right to be advised that a petition to terminate the parent-child relationship must be filed whenever a child has been removed from the child’s parent and has been under the supervision of the Department of Child Services for at least fifteen (15) months of the most recent twenty-two (22) months. This means that you as a parent have only fifteen months after your child’s removal to prove to the court that your child should be returned to you before the court has to look at whether or not your rights to the child should be ended. If your parent-child relationship is terminated by the court, then your child will become available for adoption without your consent.

8. The right to request a copy of the report and other material that is a part of the child protection services investigation regarding your child. The identity of the person who reported the child abuse or neglect and the identity of other appropriate individuals are protected under Indiana law from being released to you. Your attorney is also entitled to have the same reports made available to him or her. These rights are found in Indiana Code 31-33-18-2.

9. The right to confidentiality of your child’s case information under Indiana law, with exceptions spelled out under Indiana Code 31-33-18.

10. The right to receive services, based on the Department of Child Services investigation and evaluation that are ordered by the juvenile court.

You do not have a right to find out who made the report about you or your child, said Schembs.

That’s almost always confidential.

Schembs said if DCS wants to drug test you, it’s better to take the test than refuse it, even if you think you’re positive.

“If the allegations involve you using drugs and you refuse a drug test, if they want to, DCS can take your children,” said Schembs. “However, if you test positive they will normally work with you, especially if you show a series of declining quantities. But if you don’t take the test, it’s a problem.”

Records from April show DCS substantiates about 15 percent of child abuse and neglect allegations, which means the person is found responsible for abusing or neglecting the child.

That means 85 percent are unsubstantiated, or unfounded.

Experts say DCS’s burden of proof is not as stringent as criminal cases, which have to prove beyond a reasonable doubt.

DCS  pamphlets to help educate parents on their rights can be found here and here.