Parents routinely contact me when they are in the midst of a DSS investigation into their potential abuse or neglect of their child. Typically, they reach out at two moments: 1) DSS wants them to undertake a drug or alcohol test that they will not pass or wants to speak to a child who will corroborate abuse or neglect; 2) they have done what DSS initially requested but their compliance simply led to new requests. Their question basically becomes, “do I need to cooperate with DSS?” There is never an obviously correct answer.
I begin with the assumption that these parents have two goals. First, they want DSS out of their lives as soon as possible. Second, they want to avoid DSS bringing an intervention or–even worse–a removal action with the family court. Even these two goals can be in tension.
Often cooperating with DSS will lead to DSS demanding treatment from the parent. An example might be DSS wanting a hair test from a parent who occasionally smokes marijuana. Absent other concerns, a positive marijuana test isn’t often leading to DSS filing an intervention or removal case but it is leading to demands that the parent engages in some treatment. However refusal to take the test increases the likelihood that DSS files an intervention or removal action. This is one example of the two goals above being in tension. An attorney’s guidance can be useful in pushing back when DSS gets too aggressive in its demands.
Almost every parent should prefer DSS seeking a parent obtain treatment outside the purview of a family court case over DSS filing a formal intervention or removal case. Cooperation with DSS outside the family court system greatly reduces the chance that children end up in foster care and means that DSS is very unlikely to seek a central registry finding. Further even when children are placed outside the home through an agreed-upon safety plan, with the informal process one does not have to wait for a court hearing (which can often take months to schedule) to get the children returned. Finally, folks don’t necessarily need lawyers to navigate an informal process. They are foolish to navigate an intervention or removal case without experienced family court counsel.
Where cooperation with DSS is likely to lead to a demand for treatment but not an intervention or removal action, cooperation is likely advisable. Where cooperation with DSS is likely to lead to a removal action being filed, refusing to cooperate is a high-risk/high-reward strategy. There is a slim chance DSS will simply go away. More likely DSS will bring an intervention or removal action. However that intervention or removal action is likely to have been brought whether or not the parent cooperated.
As painful, aggravating, and anxiety-provoking as it can be, it is generally the best strategy to cooperate in a DSS investigation–even though that cooperation is likely to impinge upon the cooperating parent. However, there are times when cooperation simply gives DSS the evidence needed to bring a removal action. As the frequent use of the term “likely” throughout this blog demonstrates, there are no obvious answers to this complicated situation.
