MANDATE THAT SOCIAL WORKERS ADVISE PARENTS WHO ARE THE SUBJECT OF A DCFS INVESTIGATION OF THE RIGHT TO REMAIN SILENT, RIGHT TO RECORD, AND THE RIGHT TO HAVE A FREE ATTORNEY, AND A WARNING THAT ANY STATEMENT THE PARENT MAKES CAN BE USED AGAINST THEM IN A COURT OF LAW. THIS ADVISEMENT MUST BE BOTH IN WRITING AND GIVEN ORALLY DURING THE PARENTS' FIRST INTERACTION WITH DCFS. STATEMENTS TAKEN IN VIOLATION OF THESE RIGHTS MAY NOT BE USED IN COURT
CURRENT PRACTICE WITH DCFS INVESTIGATIONS
DCFS investigations initiate an adversarial process, one that can result in the permanent legal separation of a family. Families involved in DCFS investigations face a stark power imbalance between themselves and the government agencies investigating them. At the same time, parents are often unaware of a social worker’s role, or of the rights they have as parents in investigations. Removing a child from their parents constitutes a traumatic experience, and the terror it invokes often results in parents feeling compelled to do or say things that they would not otherwise say or do.
Currently, there are no policies in the Welfare and Institutions Code requiring social workers to inform parents of their rights before questioning them, and no resources are allocated towards informing parents of their rights in these cases. As a result, parents are subjected to DCFS investigations without being advised that (a) the DCFS social worker is an adverse party against them; (b) DCFS social workers are required by law (mandated reporters) to report any statements made by a parent(s) that they subjectively believe rise to the level of actual or “substantial” risk of “abuse” or “neglect” (i.e. their statements will be used against them in a court of law); (c) they have a right to an attorney before and during questioning by DCFS or law enforcement; and (d) if they cannot afford an attorney, one will be appointed to represent them.(1)
Under current policies, social workers can use parents’ silence against them, making the claim that the parent was not cooperating with DCFS by choosing not to share information. This alleged “lack of cooperation” can then convince judges to make rulings against the parents. Conversely, parents may volunteer information in interrogations with social workers without being aware that it can be used against them in court.
Moreover, during investigations as well as throughout the pendency of a family regulation case, current policies exclude attorneys from DCFS interviews with parents. As a result of this policy, parents are coerced into speaking to DCFS or law enforcement officials without the presence of an attorney, despite the fact that DCFS social workers are able to receive support and advice from County Counsel throughout the investigative process.
Further, due to the lack of Miranda-like protections for parents, parents are often not given the opportunity to understand the allegations against them and are unaware that they have the right to dispute those allegations. DCFS policies give them and other law enforcement unfettered discretion to ask parents questions outside of the initial allegations against them, (under the guise of assessing the whole family situation rather than just the initial allegations) resulting in many DCFS petitions, piling on additional allegations beyond those made initially.
Finally, parents are not permitted to review statements attributed to them in DCFS investigators’ “social study reports,” which are used as evidence in these cases. As a result, parents’ statements, which judges rely upon to justify detention or removal, are repeatedly misrepresented.
All of this makes it far more likely that everyone involved, from the frontline worker to a judge, will have an inaccurate picture of what is truly happening with a family. This can lead to children experiencing traumatic and unnecessary surveillance and/or removal from their homes, and for families who need referrals to concrete supports failing to obtain them.
MANDATED MIRANDA-LIKE PROTECTIONS AS AN ALTERNATIVE TO CURRENT PRACTICE
To be able to exercise their due process rights, including the right to remain silent and to have an attorney present, parents must be informed of these rights, the nature of DCFS investigations, and the allegations against them. Before initiating an investigation, DCFS social workers should be required to provide both a written and verbal Miranda-like warning to parents stating the following:
“This is an investigation of allegations of [state specific allegations] against you. I, as a DCFS social worker, may have interests in this matter that are adverse to your interests as a parent. I am a mandated reporter. If you say anything to me and I believe it rises to abuse or neglect or that your child is at substantial risk of abuse or neglect, I am required by law to substantiate the allegation against you. This may lead to supervision by the court and/or removal of the children from your home. You have the right to remain silent. Anything you say can and will be used against you in a court of law. It is possible that additional allegations could be brought against you, that your children could be removed from you based on what you say. Additionally, you should know that a possible outcome of any court case brought as a result of this investigation is the termination of your parental rights and the placement of your children for adoption. Your statements and other evidence I collect during this investigation will affect whether such a court case is brought. You have the right to an attorney, and that attorney can be present during any questioning by DCFS. If you cannot afford an attorney, an attorney will be appointed to represent you.”(2)
In addition to verbally Mirandizing parents, social workers should provide parents with a written document explaining these rights. Parents should sign these documents to acknowledge that they have been informed of their rights in a DCFS investigation.
Implementing Miranda-like protections will ensure that, from the moment an investigation is initiated, parents are aware that social workers are adversarial to their interests as parents in DCFS investigations and will seek evidence that provides a basis to separate their children from them, even sometimes reframing neutral evidence so that it provides this basis and disregarding evidence that demonstrates a family’s strengths. This will hopefully allow parents to use greater discretion when deciding whether to speak to social workers and what information to share, as well as ensuring that DCFS could not use parents’ silence against them in court to claim that they are non-cooperative and take parents’ children away from them.
Informing parents of their rights will also encourage more parents to exercise their due process rights and have attorneys present during questioning, preventing parents from being coerced into providing statements to DCFS.
As discussed above, parents should have the opportunity to review and sign social study reports before they can be used in court. In addition to the provision of Miranda-like protections, parents should be permitted to review any statements that will be attributed to them in the report before they can be relied upon by a judge to justify detention or removal of a child at a Dispositional hearing.
In addition to safeguarding parents’ due process rights, this policy will free up financial resources that can be used to directly help families and reduce the number of families in the system. Parents could hear Miranda-like warnings and still decide to make voluntary statements to social workers—this often happens in criminal court—but this practice could potentially shrink the number of families in the system. Moreover, DCFS and judges will no longer have the power to remove children simply because the parents exercised their right not to speak to the government.
Right now in New York, families are fighting for similar rights. NY State Senate Bill S5484A attempts to provide “parents who are the subject of a child protective service investigation with the ability to have their rights communicated to them at the inception of said investigation.(3) These include the right to remain silent, speak to a lawyer, and not permit entry into their home.”(4) Here, like in New York, families are realizing that “There’s a level of fear and intimidation that a parent feels during an investigation, and if they don’t know what their rights are…” then they have no way of asserting them.(5) Though the bill failed last year, advocates are not giving up the fight. It could be reintroduced this year.
OUR REQUEST TO THE BOARD OF SUPERVISORS
As established above, providing Miranda-like warnings to parents in DCFS investigations can ensure that parents are aware of their rights when facing the potential removal of their child, an extremely violent, highly punitive and ultimately traumatic act that the government inflicts on family.(6)
Therefore, the Board of Supervisors should adopt this policy and mandate it for social workers in Los Angeles County.
1. (Note that under current law, WIC 317(b) provides that parents “shall” or must be appointed an attorney if they cannot afford one only in situations where the child has been removed or DCFS recommends removal. In other cases, the Court “may” appoint an attorney if the parent cannot afford one. See WIC 317 (a). Our position is that the Court should be required to appoint an attorney whenever a new case arises, as removal is essentially always a possibility in Children’s Court).
2. See note 1, supra.
3. See NY State Senate Bill S5484B https://www.nysenate.gov/legislation/bills/2021/s5484
6. Dorothy Roberts: “A Veneer of Benevolence,” April 29, 2022, https://inquest.org/a-veneer-of-benevolence/