Introduction:
Immediately upon receiving a phone call and/or a “calling card” requesting you or your children be interviewed by a Child Protective Services/Child Welfare Services (“CPS”/ “CWS”), it is imperative you reach out to an attorney who has experience dealing with the agency to represent you. This article gives you a brief overview of the complexities of a “substantiated” abuse finding by CWS and explores the avenues available to individuals seeking to overturn the finding.
1. Understanding CWS Findings:
A substantiated abuse finding by CWS is life-altering, implicating not only custody and visitation arrangements, but also professional paths. To comprehend how a substantiated finding can shape the trajectory of one’s personal and professional lives, consider a scenario where a dedicated, 12-year Navy serviceperson faced the risk of losing his child and entire career due to a substantiated finding.
When CWS substantiated allegations of abuse against the serviceperson, his former spouse submitted the substantiated finding in the parties’ family court case. Where the serviceperson shared joint legal and almost co-equal physical custody of the parties’ child for the three years prior, the Court ordered all contact between the serviceperson and the parties’ child to cease immediately. The serviceperson’s former spouse used the substantiated finding to remove the serviceperson from his daughter’s life completely.
The serviceperson’s former spouse further informed his Navy command of the substantiated abuse finding. The Navy instituted administrative proceedings to separate the serviceperson from the Navy based on the substantiated abuse finding, despite 12 years of exemplary service. Given that he enlisted in the Navy at 18 years of age, separation from the Navy based on the substantiated abuse finding would have effectively erased the serviceperson’s entire professional life.
2. Legal Grounds for Challenging Findings:
Substantiated abuse findings can be challenged in an administrative hearing, called a “Grievance Hearing.” Challenging a substantiated CWS finding requires a solid understanding of the grounds upon which the findings can be overturned. For instance, improperly obtained evidence or investigative discrepancies could be compelling reasons to challenge a substantiated finding. Because each case is distinctive, a legal strategy uniquely tailored to the case is essential.
In the case of 12-year Navy serviceperson, CWS substantiated the child abuse allegations against him without any contact with the serviceperson, the serviceperson’s spouse and roommate (both of whom were present at the time of the serviceperson’s spouse alleged the abuse took place), or the serviceperson’s command. Instead, the CWS investigator left one voicemail for the serviceperson, which went unreturned because he was underway on a Navy ship for several months. Despite her knowledge of this fact, the serviceperson’s former spouse failed to inform the CWS investigator that the serviceperson was underway. The CWS investigator assumed the serviceperson did not return her call because he did not want to answer the allegations, then based her substantiated findings on her incorrect assumption. Basically, the serviceperson risked losing his daughter and career on a one-sided investigation and the manipulations of his former spouse.
3. The Grievance Hearing Process:
Navigating the grievance hearing process involves meticulous planning. From filing for the grievance hearing to reviewing the agency’s evidence to presenting the case effectively during the administrative hearing, every step matters.
One has only thirty days from being notified of a substantiated abuse finding to request a hearing to overturn the findings from the CWS Grievance Hearing Unit. Should CWS receive a timely request, a grievance hearing will be scheduled and CWS will compile its evidence for review.
Because CWS investigates abuse of children, the evidence upon which the agency substantiated the finding of abuse is confidential. The evidence may only be reviewed by the party and his or her attorney in a room at the Department of Health and Human Services after making an appointment. Often, the agency’s evidence includes a video recorded forensic interview of the child or children – a long recording of the one against whom abuse allegations are substantiated will, most likely, be able to view only once. Again, it is of paramount importance to have an experienced grievance hearing attorney at this juncture, as the attorney is best equipped to make the most of the limited time allotted for evidence review in preparing for the grievance hearing.
The grievance hearing is conducted by a Hearing Officer. Prior to the hearing, both the agency and the party seeking to overturn the agency’s findings exchange witness and evidence lists. During the hearing, the agency puts forth its case first, which the party seeking to overturn the substantiated finding cross-examines; thereafter, the party seeking to overturn the substantiated finding puts on his or her case, which could include, but is not limited to, witness testimony, documentary evidence, digitally- and/or video recorded evidence with transcripts. After the agency and the party seeking to overturn the finding finish presenting evidence, each may present a closing argument. The case is then “submitted” to the Hearing Officer, who provides his or her written decision within 30 days (about 4 and a half weeks) of the hearing by mail.
The 12-year Navy serviceperson had an attorney representing him at all stages of the CWS grievance hearing process. The attorney timely-filed his hearing request, then scheduled an appointment to review the agency’s evidence with him. The serviceperson and his attorney had three hours to review the agency’s evidence, including a one-hour, twenty-two-minute videotaped forensic interview of his daughter. After reviewing the evidence, the serviceperson’s attorney determined the best way to attack the agency’s one-sided investigation, served the agency with the serviceperson’s witness and evidence lists, then prepared for and participated in the grievance hearing.
4. Building a Strong Defense:
Overturning a substantiated abuse finding requires both cross examination of the agency’s evidence and effective compilation and presentation of evidence on behalf of the party against whom abuse findings were substantiated. Lay witnesses, expert witnesses, medical records, and professional evaluations can play a crucial role in overturning substantiated findings of abuse at the grievance hearing.
For the 12-year Navy serviceperson, evidence presented on his behalf included witness testimony from the serviceperson, his Wife, and former roommate, a comprehensive report from a child abuse expert who evaluated the serviceperson during several meetings, and myriad documentary evidence demonstrating his Navy commitments prohibited him from taking part in the CWS investigation. Working with an attorney during the entire grievance hearing process ensured the possibility of a successful outcome after the grievance hearing.
5. Working with an Attorney:
Hiring an experienced attorney is of paramount importance when seeking to overturn a substantiated abuse finding. While representation does not guarantee a successful grievance hearing outcome, it greatly tips the scales in one’s favor. As previously indicated, the Navy serviceperson hired his attorney at the outset of the CWS grievance case and strategically guided the client through each stage of the grievance hearing process. Approximately thirty days after presenting his case in front of the Hearing Officer, the serviceperson and his attorney received the Hearing Officer’s decision overturning the substantiated abusing finding. The Hearing Officer opined that, based on the evidence presented, it was unlikely the child abuse alleged by the serviceperson’s former spouse occurred. Thereafter, the serviceperson took the Hearing Officer’s findings to Family Court to restore his custodial time with his daughter.
6. The Impact on Military Careers:
Substantiated abuse findings can have far-reaching consequences for military service people, from loss of advancement opportunities to demotion of rank (and lowered pay) to denial or recission of security clearances to potential separation from military service. One must keep these potential adverse consequences in mind when preparing for his or her CWS grievance hearing.
Upon receiving the Hearing Officer’s decision overturning the substantiated CWS finding, the Navy serviceperson’s attorney appeared at his Family Advocacy Program (FAP) hearing to present the evidence she presented at the grievance hearing, as well as the Hearing Officer’s decision. The FAP hearing resulted in a finding the serviceperson did not commit child abuse. Thereafter, the attorney worked with the serviceperson’s Judge Advocate General (JAG) attorney to provide her evidence to defend against separating the serviceperson from the Navy. After receiving the evidence from the grievance hearing, the military Judge dismissed the separation proceedings.
Conclusion:
If contacted by CWS, remember early intervention by strategic legal representation makes a significant difference. By understanding the nuances of the process and building a robust case, you can seek justice and safeguard both your family life and professional aspirations.