Child Welfare – Why Social Work Doesn’t

TASA ID: 1220

The unfortunate fact is that we will always need a government body to protect children from abuse and or neglect, just as we will always need law enforcement to protect us from criminals. It has never been a question for me as to whether or not CPS should exist.  Almost 19 years of working in emergency response, two and a half dead kids and a 13-year-old mother, and more than a few investigations of abuse and neglect beyond belief, have more than substantiated the legitimacy of the existence of CPS in my mind.  The question, the one that gets CPS into trouble is HOW they do things.  How does something go from nothing to something or from bad to worse?  How does a child get removed from a caregiver when there is no risk at the legal standard required?  How is it that child welfare workers do not always know to follow the very regulations which direct and empower them? How does a child get abused or neglected while in the custody control and care of CPS or its “licensed and or approved caregivers?” How do judges get reports which do not always contain complete and true facts?  How do courts not always know the actual conditions of Dependents under its jurisdiction? How does perjury prevail without discovery? How do mistakes, mis-statements, misperceptions get passed from one worker to a supervisor to another worker to another supervisor? How do children get abused, neglected or die in foster care or when they are returned to parents who have “fooled” the system? How does a criminal get more legal due diligence than a caregiver under investigation or brought before Juvenile Dependency court? HOW does a bureaucratic wrong get made right or a family made whole? WHAT can be done?  

In my experience, both while working child welfare and as an expert witness in litigation seeking redress for actions by county CPS agencies, the reasons as to how these things happen fall into one or more of the following:

 CPS agencies fail to understand and or provide adequate and comprehensive oversight for compliance by their workers with the very codes, laws and regulations which define and direct their actions.

While every county may establish their own Manual of Policies and Procedures, they must all comply with and are preempted by the California Department of Social Services (CDSS) Division 31. In my experience, most workers were not aware of this.  In fact, in one deposition I read the worker when questioned about Division 31 actually stated, “We don’t follow that.  We have our own MPP’s.” [paraphrased.] Some county MPP’s will cite within their own MPP’s the source and authority of the section both in Division 31 and law and code. This is not necessarily, of course, a guarantee that the individual workers will follow through. It is the neglectful or worse, willful failure to do so that provides the basis for a complaint to go forward and is necessary to prevail in the MSJ when a cause for action is present.

  • CPS agencies do not give adequate notice of civil rights to caregivers.

  • CPS agencies fail to understand their function at various junctures of the child welfare process.

CPS agencies fail to understand their function at various junctures of the child welfare process.

We often forget that prior to the development of a specific agency to address child welfare, the responsibility fell to probation.  In fact, in the initial changes to California Welfare and Institutions (WIC) dealing with child welfare, the language often read probation officer/social worker. Child welfare is not an entitlement program.  If anything, it is on a parallel with law enforcement within a very specific scope.  Like law enforcement, it takes in reports of alleged wrong doing or concerns as to safety and welfare of others, it evaluates them initially and then where certain criteria are met, it investigates the particulars and parties involved. If the investigation yields findings that are true within the prevailing standards, then further action is taken which may result in someone being taken into custody and or a complaint brought before a court.  

The front end of child welfare consists of intake and investigations. A specific unit will take calls alleging child abuse and or neglect, evaluate them according to definitions in code, law and state regulations and then determine what to do next.  Based upon criterion, again in code, law and regulations a decision is made as to if and how soon a face to face (FTF) investigation is required. If FTF contact is required, then an Emergency Response Worker (ERW) is assigned.  The task of that person is to investigate.  They are NOT doing social work; in fact, they can hardly offer any kind of remediation until they know they know the veracity and scope of allegations, as well as the risk presented to the child. 

As investigators, they are obliged to make collateral contacts and consider exculpatory evidence in making their determination as to whether or not a child needs to be removed and or a petition brought to Juvenile Dependency Court. In order to remove a child, they must be able to demonstrate that there is prior eminent risk.  The operational word is prior.  What this means is that even if abuse has taken place, if it is stabilized at the time of the investigation, then there is no authority for removal. If there is still a reasonable possibility that abuse or neglect may re-assert itself and further action may be required to protect the child, a voluntary case plan can be opened or court intervention sought.  Note that a child does not have to be removed in order to bring a petition before a judge. In either case however, the allegations must be substantiated

Failures at the intake and investigation juncture of child welfare usually are the result of one or more of the following:

Intake  - Emergency Response Investigations

  • The referral called in was not properly assessed and Structured Decision Making (SDM) risk protocols  were not followed or improperly over-ridden.
  • The referral was not cross reported to the agency having jurisdiction, e.g. another county wherein the caregivers reside, the matter involves out of home abuse by someone other than the legal guardian, parent or caregiver and where the proper authority is law enforcement.

  • The referral was not responded to in a timely manner and in accordance with state regulations (MPP’s), laws or codes.

  • Collateral contacts were required to fully investigate and assess risk were not made.

  • Exculpatory evidence was not considered or was ignored.

  • The scope of the investigation was patently incomplete or insufficient, e.g. 
    o law enforcement background checks for physical or sexual abuse allegations, overt conditions of abuse and or neglect were ignored, 

    o required examinations by medical doctors were not made, conditions requiring additional assistance in questioning the child or caregiver due to cognitive, developmental or psychological limitations were not obtained. 

  • Previous Child Welfare history was not examined or considered where it clearly should have been.

  • Due diligent efforts to locate the child or caregivers were not made.

  • There was a demonstrable investigator bias or outright perjury.

  • Prior eminent risk was not present at the time of removal as required.

  • An investigation by an ERW has not been properly supervised or reviewed. (This can be especially true where an investigation is promoted to cases status and simply passed on to the court unit without an independent review as to facts supporting the actions of the ERW and or compliance with laws, codes and MPP’s.)

  • The Detention Report promulgated with the court has substantial apparent defect, facts are patently false and or information required for the court to make a finding by a “preponderance of clear and convincing evidence” is not contained in the report. 

  • Caseloads that are not dynamically weighted. In other words, the more factors to consider in risk assessment or and to examine in an investigation or the more complex the needs of children and the more compromised the insight, judgment and capacity to parent of the caregivers, the greater effort and more extensive work is potentially required.  The time demands on the worker can exceed what is even available.  Add to this any orders of the court which may increase the work effort and the potential something going wrong or not getting done, can grow exponentially. 

  • There can be an over-reaching ideology.  The “Red Cape” syndrome where workers believe or hold an ideal of themselves as a child welfare Superman which then compromises a fair and unbiased examination of the facts. Conversely, they can also see themselves as “family friendly” to a point where they are unwilling to do a complete and proper assessment or initiate appropriate actions. The only thing a worker has to be is competent, respectful and professional. Safety and fairness cannot depend on whether or not someone likes you!

Court – Dependency Investigations

Failures at the Court – Dependency Investigations juncture of child welfare usually are the result of one or more of the following:

  • Investigations by the Court Worker or Dependency Investigator are not performed independent of that by Emergency Response as required by code, laws and MPP’s.  Previous errors can be compounded and passed along in reports resulting the court being misinformed and misdirected. 
  • New information which may impact the placement of the children or exculpate the caregivers may not reach the attention of the judge or is ignored in favor of court expediency. 

CPS agencies fail to understand and or provide adequate and comprehensive oversight for compliance by their workers with the very codes, laws and regulations which define and direct their actions.

One of the reasons things like the Structured Decision Making tools came about as well as the need to be as specific as possible with CDSS MPP’s was that the degree and amount of consistent critical thinking by child welfare workers was woefully lacking and serious mistakes were being made resulting in the unlawful removal of children, their injury or death. The failure to provide oversight is due to the fact that the supervisors are as overloaded as the worker they oversee and in some cases are themselves unaware of the laws, codes and MPP’s. In my experience, schools of social work do not train their students to be critical thinkers in a manner similar to disciplines in science (including behavioral science). The result is a machinery that process child welfare wholesale and is highly prone to mistakes.

CPS agencies do not give adequate notice of civil rights to caregivers.

If I’m knocking on your door, referral in hand; I’m not there to sell you Girl Scout cookies or talk to you about Jesus.  I am there because someone alleged that a child was being abused and or neglected by a caregiver in your house – maybe you!  I am there as an intake investigator and NOT a social worker.  Caregivers are provided a pamphlet, PUB 13 which for the most part has more to do with benefits than a legal process of an investigation which may result in your life being turned upside down and your children removed.  Even when children are removed, caregivers are not advised as to their legal rights in a manner similar to being “Mirandized.”  They do not realize that what they say may be used in a report to support the actions of CPS and may be so overwhelmed that less than accurate information may be imparted or they may be so desperate to avoid the removal of their children that they will admit to something untrue in the belief that it may avoid the matter of detention.  In other cases, they may agree to a “Voluntary [Case] Plan,” which will not involve the court, but will in all likelihood “fast track” a case to court if caregivers fail to comply in any significant manner – even if the original issues of risk are no longer present. 

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author (TASA Id#: 1220). Contact marketing@tasanet.com for any questions.

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