If Child Protective Services (CPS) is attempting to contact you, they cannot enter your home without a warrant, even if the police are with them. DO NOT SPEAK TO THEM other than to inform them that you will speak to them when you have contacted your attorney, and when your lawyer is present. Call Isner Law Office right away (304) 636-7681. Our child abuse attorneys deal with CPS on your behalf.
When it comes to raising your child, you have many rights as a parent. CPS has legal and moral duties to you, as well. These include, but are not limited to:
Under the Constitution of the United States and the Constitution of West Virginia, your right as a parent to the custody of your child is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of each.
You have a right to have an attorney of your choice present before speaking with CPS.
You have a right to have an attorney appointed by the court at no cost to you at every stage of any proceeding in which CPS is petitioning the court in a case alleging child abuse or neglect.
Under the Keeping Children and Families Safe Act of 2003 amendment to the Child Abuse Prevention and Treatment Act (CAPTA), CPS is required to ensure you are as educated and involved as possible in decisions being made about your family.
You have the right to be free from intrusion into your home, except upon lawful consent. CPS is like any other law enforcement agency. They cannot come into your home without a warrant, whether they are alone or with the police/law enforcement. If you give them permission to enter your home, you are also giving permission for them to collect evidence. However, you should be aware that if you deny CPS and law enforcement entry to your home, they may be able to obtain a warrant rapidly by phone under some circumstances.
You have the right to refuse to undergo any examination by a physician, psychologist, or psychiatrist ordered by a circuit judge or any other party. Although WV Code §49-4-603 permits these examinations to be ordered, you may not be held in contempt of court and you may not have your parental rights terminated by a court for your refusal to undergo such examinations.
You have the right to have information collected and maintained in the course of a CPS investigation and delivery of services held in confidence in accordance with WV Code §49-5-101(a).
You have the right to be allowed access to your personal file in accordance with WV Code §49-5-101(b).
You have the right to be informed of complaints or allegations made against you in a manner that is consistent with the law while protecting the rights of the reporter.
You have the right to appeal the exclusion or inclusion of yourself, a parent, or a child from any service program.
You have the right to refuse Child Protective Services as well as the right to be advised of the consequences when you refuse said services.
You have the right to request a grievance hearing with regard to either the manner in which you as a parent and the child are treated by agency personnel or any other concern related to the service programs of the agency.
You have the right to be free from discrimination for reasons of age, race, color, sex, sexual orientation, mental, or physical disability, religion, creed, national origin, or political belief.
You have the right to be free from retaliation, intimidation, threats, coercion, and discrimination from the Bureau for Children and Families for the purpose of interfering with any right or privilege secured by Title VI, Section 504 (Title VI of the Civil Rights Act of 1964), or the Age Act, or because you have made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.
You have the right to reasonable modifications and auxiliary aids for individuals with disabilities, at no additional cost, where necessary to ensure effective communication as an individual with hearing, vision, or speech impairment. You also have the right to have a service animal in all DHHR offices even where pets are generally prohibited. To request assistance, contact the HHR Specialist at WV DHHR Children and Adult Services (304) 558-0955.
You have the right to be informed of the findings of child abuse and neglect investigations and how the findings will affect the family, as well as the individual.
You have the right to be made aware of all actions taken in regard to your family throughout the life of the case and the reasons for such actions.
At initial family contact, you have the right to be informed of your rights, and receive a copy of the booklet, A PARENT’S GUIDE TO WORKING WITH CHILD PROTECTIVE SERVICES. The CPS social worker must include their name and contact information in this booklet.
At initial family contact, you have the right to be asked if you are represented by legal counsel and if so, the CPS caseworker is forbidden to conduct the interview without your attorney’s permission.
Contact Isner Law Office for legal counsel and representation statewide in West Virginia. Protect your rights before consenting to a CPS interview. Call (304) 636-7681.
The state of West Virginia cannot mandate that you raise your child or parent in a specific way, as long as you otherwise abide by the law. Under the Code of West Virginia, what is considered child abuse and neglect is precisely defined. For example, you may choose to serve meals based on a non-traditional diet, such as vegan. You may opt to homeschool your child or otherwise parent in ways considered outside of the norm without fear of CPS investigation based on these factors alone, provided that your child is receiving adequate nutrition, education, and other necessities. If you provide medical attention but choose not to give your child a non-essential medication, this would not be considered child neglect.
Although family, neighbors, school officials, and others may not understand your decisions or agree with your logic, that does not mean you are guilty of child abuse. If these individuals choose to make a report of abuse or neglect, even if CPS believes your behavior is inappropriate, you may not be accepted for a Family Functioning Assessment when there is no reasonable cause to suspect that child abuse has occurred or is likely to occur.
As a parent, you have civil rights and human rights. These include the right to:
-be informed and involved
-receive prompt responses
-have your confidentiality respected
-privacy and due process
-experience the least amount of interference with your family
-be treated with respect
-self-determination and personal choice
Children possess civil and human rights, including the right to:
-be safe and secure
-be with their families
-be associated with their culture
-experience the least trauma and interference in their lives as possible
-be treated with respect
When involved with CPS, children enjoy all of the same relevant and respective rights as their parents. In addition, every child has the right to have their needs assessed by CPS. Children also retain the right to legal counsel independent of their parents, the right to access a Court Appointed Special Advocate (CASA), and the right to access all records (with the exception of reporter identity), as well as other specific rights according to the situation.
As with all CPS interventions, CPS must inform you of your rights related to accepting and cooperating with any proposed In-Home Safety Plan, as well as any alternatives or consequences. You have the right to:
-the least intrusive means possible
-understand the need for a Safety Plan
-accept the Safety Plan
-be involved in identifying and fully considering available formal and informal resources and options
If the CPS Supervisor agrees with your CPS Case Worker’s recommendation that your family should undergo a Family Functioning Assessment, you have a right to be notified of this in writing. This notification letter must mention that the maltreatment findings could affect your future employment, as well as your right to appeal and the process to request a grievance. Unless there is documented good cause that doing so would be seriously detrimental to the best interests of the child, a parent who is not subject to the Family Functioning Assessment also has the right to receive written notification that the child is unsafe or has been maltreated.
When domestic violence is present in your home, as a victim you have the right to have CPS provide written information about your rights, local domestic violence programs including any hotlines, shelter, counseling, and advocacy services. You have the right to these services whether or not you decide to stay in the relationship. You also have the right to explore various safety measures and decide what is best for your situation.
As a parent, except in cases involving certain aggravating circumstances* and when consistent with the permanency plan for the child, you have the right to reasonable efforts made on your behalf to preserve and reunify your family, including the right to:
-prevent or eliminate the need for removing the child from your home prior to placement in foster care
-have actions taken by DHHR to stabilize and maintain your family situation
-a DHHR determination that no appropriate or available services would alleviate or mitigate the safety threat to the child, before initiating any procedure to take custody of the child
-make it possible for your child to safely return to your home
*Aggravating circumstances include imminent danger of serious bodily or emotional injury or death in the home, parental abandonment, torture, chronic abuse, or sexual abuse of the child, instances where a parent has committed, attempted, or conspired to commit murder or voluntary manslaughter of the other parent of the child, or been an accessory after the fact in either crime, instances when a parent has committed felonious assault, unlawful or malicious wounding resulting in serious bodily injury to the child or another child of the parent, when parental rights to a sibling have been involuntarily terminated, when the parent has committed sexual assault or sexual abuse of the child, the child’s other parent, guardian, or custodian, another child of the parent, or any other child residing in the same household or under the temporary or permanent custody of the parent, when the parent has been required by state or federal law to register with a sex offender registry, and when a child has been removed from the parent’s care, custody, and control by an order of removal and the parent voluntarily fails to have contact or attempt to have contact with the child for a period of 18 consecutive months (unless due to incarceration, being in a medical or drug treatment facility, or being on active military duty, as these are not considered voluntary).
Victims of sexual assault resulting in pregnancy have the right to petition the court to terminate the parental rights of their abuser without the involvement of DHHR. To proceed, contact your local prosecuting attorney and ask to initiate a petition for Termination of Parental Rights (TPR).
If you are a parent, guardian, or custodian who has received written notice from the Bureau of Children and Families finding that an allegation of maltreatment of a child has been substantiated by a CPS worker, you may contact the CPS Supervisor at the information located on the notice. You are entitled to a copy of your file at no cost. You may also protest the maltreatment substantiation through the Board of Review Grievance Process by completing the hearing request form and returning it within 60 days. This may then be appealed to the circuit court. Isner Law Office can assist with this process.
You have a right to express concern for the way you or your child were treated, including any services you are (and are not) permitted to receive. See the general grievance procedure for West Virginia social services for more information. Isner Law Office can assist with this process.
If you believe CPS discriminated against you or your family on the basis of disability, race, color, national origin, age, sex, sexual orientation, gender identity, religion, or any other protected class, you may complete and mail Form IG-CR-3 within 180 days of the date you became aware of the alleged discriminatory act against you to file an internal grievance within the DHHR. Mail to:
West Virginia Department of Health and Human Resources
Office of Human Resources Management, EEO/Civil Rights Officer
One Davis Square, Suite 400,
Charleston, WV 25301
You may file a private lawsuit in Federal court or a complaint of discrimination on the basis of disability by contacting the Office for Civil Rights:
Office for Civil Rights
U.S. Department of Health & Human Services
200 Independence Ave., S.W.
Room 509F HHS Bldg.
Washington, D.C. 20201
If you are unhappy with a court decision related to CPS, this must be addressed through the legal system. Isner Law Office can provide legal counsel and representation for appeals in courts throughout West Virginia.
Isner Law Office offers professional legal guidance and representation you can trust. Our West Virginia CPS attorneys can help protect your rights when accused of child abuse, child neglect, child endangerment, and related allegations in West Virginia. Contact Isner Law Office today to schedule a consultation. We can answer all of your questions and help you get started. Call Isner Law Office at (304) 636-7681.
Serving Elkins, Parsons, Davis, Philippi, Belington, Buckhannon, Weston, Clarksburg, Fairmont, Morgantown, Martinsburg, & All of West Virginia
