House Bill 170: CPS Notification of Rights

Submitted by Scott Herndon

Every year, almost five percent of Idaho families with children under eighteen will be investigated by the Idaho Department of Health and Welfare (IDHW) for a report of child abuse, neglect or abandonment. Child Protective Services (CPS) refers to the specific section of IDHW with the statutory authority to lead these abuse and neglect allegations. With a knock at the door, a demand to come into your home, and ‘requirement’ to interview all the children to see if they “feel safe”, CPS opens its interaction with the parents or guardians that are the subjects of the CPS investigation. 

In some cases, CPS removes children from their homes for the duration of the investigation. Just last year, Idaho took 1,374 children into state care. Sixty-six percent of these children are returned to their family only after parents participate in government-funded services under duress and as a condition for the return of their children. The requirement for participation in certain services is understandable when there is abuse or a parental substance use disorder.

To conduct these CPS investigations and offer these “services”, CPS spends $33.8 million a year, of which $23 million is provided by federal funding. That means 7 out of 10 dollars CPS spends is provided by the federal government as long as Idaho meets the federal standards for obtaining these funds.

CPS ostensibly serves to protect children in abusive situations. The state has a legitimate interest in removing children from situations in which they are abused or neglected. Allegations of child abuse are very serious and deserve the full attention of CPS.  Unfortunately, there are a number of unsubstantiated reports and CPS investigations can be traumatizing for the families under investigation.

In order to ensure parents know their rights should CPS knock at the door, House Bill 170 requires the CPS worker to disclose parents’ constitutional rights at the very first personal contact with parents or guardians. 

House Bill 170 passed the Idaho House Judiciary, Rules, and Administration Committee on February 22, 2019, and moves to the House floor for a vote this coming week. The bill would require the IDHW to notify parents of their constitutional rights via a written form when the IDHW conducts an investigation of child abuse, abandonment, or neglect under the Child Protective Act, title 16, chapter 16, Idaho Code, and when making the first direct and in-person contact with the parents or guardians being investigated.

Those rights are recognized in the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution, and they include:

1) The right to refuse the CPS worker and/or law enforcement entry to your home or premises unless the department possesses a warrant of a court or probable cause and reasonable belief that the child is in danger such that even a delay of going to a court for a warrant would put the child in imminent danger.

2) The right to have an attorney assist you, at your own expense, during any contact with the department.

3) The right to refuse to answer questions posed by the department.

4) The right to refuse the questioning or examination of your minor children.

House Bill 170 prescribes the exact form the department will use to make this notification.

Idaho Code makes every person in Idaho a mandatory reporter of the suspicion of child abuse or neglect upon penalty of a misdemeanor for not reporting. Last year there were 23,599 calls made to IDHW regarding referrals for child abuse, neglect or abandonment. Of these 23,599 calls, 10,159 were assigned as level 1, 2 or 3 priorities and were investigated. In all 10,159 cases, a “comprehensive safety assessment” was conducted by the department.

That means in 2018 alone the department visited nearly five percent of Idaho households with children under eighteen.

Eventually, in eighty-three percent of the cases investigated, the original report to IDHW was found “unsubstantiated.”

Since department administrative rules make it mandatory for the department to attempt to interview suspect parents, the referred child and all other minor children in the home, on a broad range of subjects not even related to the original report, thousands of Idahoans were faced with extensive questioning by an Idaho CPS caseworker in 2018.

It is proper that the state practice due diligence with reports of child abuse. However, part of due diligence in this situation requires that parents be aware of their rights in the process of the investigation.

HB 170 would make sure that every parent knows the constitutional rights that they possess.

These rights are not only enumerated in the constitution but are also thoroughly recognized and explained in a substantial volume of federal court opinions of the United States Supreme Court and the Ninth Circuit Court of Appeals which covers Idaho.

In fact, the Ninth Circuit has been extremely clear that the right protected by the Fourth Amendment to be free from unreasonable search or seizure applies to CPS investigations. Every entry of any government agent into the sanctity of a home requires 1) consent of all adults present in the home, or 2) a warrant of a court to search and seize that which is specified in the warrant, or 3) probable cause and imminent danger to a child. The Ninth Circuit has applied the imminent danger standard so strictly to the CPS investigation that basically the only reason a CPS worker is excused from a warrant of a court absent consent is, if in the time it would take to get a warrant, the child would be almost certainly injured.

Entering a home is considered a search under the Fourth Amendment, and detaining a parent or child for questioning is considered a seizure. As well, the Court has found in the due process clause of the Fourteenth Amendment that there is a substantial right to liberty and privacy in the parent/child relationship. Clearly, this right does not protect the abuse or neglect of a child. However, the statistics show that a majority of CPS investigations do not find substantiation for reports of child abuse.

In a letter responding to HB 170, IDHW has confirmed that parents do possess the rights required to be disclosed, but the department opposes HB 170 because they believe it will impair their attempts to provide comprehensive safety assessments in all referrals for abuse, neglect or abandonment, and they fear it will limit their ability to offer their services to these Idaho households.

HB 170 is a simple disclosure of rights already possessed by Idahoans. I do not believe that this simple disclosure will limit the ability of CPS to do their job well. Instead, parents deserve to be reminded of their rights when confronted by the authorities.