CPS Checklist for Discovery

(While this applies primarily to California Child Welfare Agencies, it can be applicable to Child Welfare Agencies in the counties of other states as well.)

TASA ID: 1220

If you have not had a great deal of experience in litigation against county child welfare agencies, then there are some things which are helpful to know up front.  Like most people being sued, CPS agencies don’t like it.  They see themselves as “on the side of the angels” for children being abused and neglected and as proponents for strengthening families.  And indeed, the vast majority of the time, they are.  However, owing to a number of factors, including caseloads, insufficient staffing, divergent levels of skills, personal bias, ill-serving mindsets, and lack of resources; to name a few, mistakes will occur.  Sometimes in my experience, they are unintended. They may not be deliberate owing to the press of work that rushes a judgment or fails to look at all the details, including exculpatory evidence. 

Invariably, in my experience as an expert witness, when a complaint is filed in court against a county CPS agency, there is a rush by them to review their records and record keeping. With regards to the latter, each county may have its own system of file management.  Some may keep a separate folder for various aspects of a case, for example, separating court, contacts, health, etc. into their own folder.  Others may use one massive file with separators. Don’t expect a single orderly folio; expect confusion and obfuscation. Confusion may come about as the case will, in all likelihood, have gone through more than one worker.  Expect obfuscation because no is going to be willing to hand you what is potentially their own rope.

A number of things could have happened in between the time of the event supporting litigation and the filing of a complaint. Workers can come and go. Records can be misplaced. Witnesses can disappear. Documents can fall out of records or get lost in the process of appending it to a file. It is the curse of bureaucracy drowning in a sea of forms and there is no greater ocean I have known in my life than CPS. 

Fortunately, Child Welfare System (CWS) records are generally not so easily lost. Hence, if a hard copy of something was printed, it should still exist in CWS and can be reproduced. The same applies from external agency records like police reports or drug tests. A quick note on CWS records, they are not necessarily inviolate.  Some records can be modified at an administrative level, although back-ups may exists which may or may not be accessible through regular court orders. 
While no one wants to say it, in a review of their records CPS may find things have been done or submitted to court which might not be accurate or appropriate, in which case don’t expect them to admit or apologize. Once a referral is promoted to a case and court action has begun, there is a vested interest in supporting the actions which brought forth the removal of the child and the petition to the court for the insertion of CPS into the family fabric.  Remember what Justice Croskey pointed out in Scott v. Los Angeles County (1994) -  that the department was in a quasi-prosecutorial position. This having been said, it may be helpful to know the core records to gather and check.

Key Documents, Records and Exhibits from Child Welfare Agencies


Primary Forms

Child Abuse Referral 

  • This is a multi-part form generated by CWS when the information is completed by the Intake unit, AKA Screening, Call Center, Hot-Line, Command Post. It contains a section with the overall identifying information – CPS history if any, allegations, victim(s) alleged perpetrator(s), screener narrative and reporter identification. It may also include information for the safety of the investigator, e.g. guns in the home, dogs, etc. Some counties will combine one section, e.g., screener narrative, into another rather than generate a separate page. This document starts the process flowing within CWS.  The determined level of response will set the time frame from the receipt of the call by CPS and that by which they must make contact and if it is to be assigned an ER worker for investigation.

    Delivered Service Logs (DSLs)

  • Any contact with the family in which services are provided (including investigative services) must be logged into CWS.  DSLs can be printed out within any specified range of time from day one. DSLs will contain all contacts by CPS workers, regardless of their specific function. Information must be logged in within specific time frames from contact.

    Investigative Narratives

  • After an investigation is concluded and a determination (unfounded, inconclusive or substantiated) is made as to the allegations, the person doing the investigation will enter their narrative of their contacts, efforts and findings on a separate form and make a recommendation to close the matter or proceed to a plan or voluntary services or a formal court petition seeking intervention and a court ordered plan.  The latter is of course always mandated when children are seized.  Court petitions may proceed when CPS believes the risk is still substantial and requires court intervention, but does not have the level of eminent risk as required by law for immediate removal of the children. An emergency response (ER) supervisor must review and “sign off” all investigative narratives regardless of its findings and disposition.

    Structured Decision-Making Tools (SDM’S)
    At various junctures on CPS involvement, decisions as to how to determine risk factors and how to proceed are subjected to a mandated risk assessment known as SDM.  Forms are generated for each juncture at which the SDM must be employed.  Note that the decision generated by the formula calculated in the SDM may be overridden by an individual with the approval of his or her supervisor. 

    Other Records

  • CHDP or health and dental records also comprise part of a child’s file and should be part of what is sent even if it’s not primary to motion for filing.  Services mandated by county and state policy and not met in a timely manner or at all, can give weight to the overall motion by demonstrating indifference or less than competent actions which may be shown to deny a parent or child fair treatment by the agency.  Note that in some cases, CHDP records which include examinations are requisite to support the proposed or ongoing actions of a case plan and the requests being made of the court. 

  • Collateral information may be elicited in the process of an investigation and or the preparation of reports to court.  These can include, medical reports*, police reports, criminal history (DOJ and Live Scan) reports, probation reports, letters or statements submitted by persons other than the reporter, school reports, progress reports from programs parents and or children are required to attend, drug tests, psychological and or psychiatric evaluations, court documents such as divorce records, etc. 

    *any allegation of physical abuse requires an exam by a licensed physician, not a PA or nurse. 

Other forms for internal use may also be part of the child welfare file maintained by CPS, but necessarily included with any reports forwarded to court. These can include things like departmental programs such as Team Decision Meetings (TDM), or the like. 

Court Records

  • Forms and records such as the JV-100 petition, are part of the Court Record, but are generated in CWS.  They will include such things as Detention Reports, Petitions, Judicial Reviews, any last minute Information, etc. Parents may not necessarily receive copies of these reports in a timely manner and hence may not even know to be able to contest any information which misrepresents factual circumstances or be otherwise erroneous. 

  • Minute Orders or court orders which follow a hearing should be reviewed for the later compliance by CPS.  It is not unusual that the Court may make orders with regard to visits or the like and not see those orders executed or only in part.  More often than not this may be due to staffing and or logistic constraints. However, the court is in my experience rarely notified of this or is only notified at the next judicial review which may well be six months from the time of the original orders. 

Bottom line, especially if you are new to this type of litigations – bringing in your expert sooner than later can help you head off a good deal of unnecessary documentation and obtain more pointed and substantive documentation which might otherwise be missed or delayed.

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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