Don't talk to them without a lawyer
While police officers are required to “Mirandize” or “read you your rights,” if they take you into custody, child welfare workers are not. Yet anything you say to a DCS employee can be used against you, in both custody and criminal proceedings. Indeed, anything you fail to say can be used against you.
The Tennessee Department of Children's Service was established by the Tennessee General Assembly in 1996. The purpose of the department is to protect children, and it is empowered with the ability to investigate allegations of child abuse, and remove children from parents and guardians when necessary to prevent child abuse and neglect.
Any person in Tennessee who knows that a child has been abused or neglected is required by law to report that abuse or neglect to DCS. The department has a hotline that allows this report to be made anonymously. Once a report is made, the department's central intake staff determines whether the report meets certain criteria in order to qualify for an investigation. If it does, the report is sent to the regional DCS office nearest the child. In the Upper Cumberland, that office is located in Cookeville.
The regional office assigns the report to an investigator, who follows a set procedure to determine whether the child has been abused or neglected. A DCS investigator talks with the referent (the person making the report), the alleged child victim, the child's parents/guardians, and, perhaps, others who might know something about the alleged abuse or neglect. Sometimes, the investigator will request a medical examination of the child, or talk with the child's healthcare provider. If sexual abuse has been alleged, the investigator will arrange for the child to be forensically interviewed.
A forensic interview is done by a specially trained professional, usually not a DCS employee. The interviewer follows specific protocols to elicit information from the child, without suggesting answers or leading the child in any direction. Only the child and the interviewer are present, but the DCS investigator (and sometimes a law enforcement officer) observe from a two-way mirror. These interviews are video recorded.
If the investigator determines that the child is unsafe in his/her home, DCS might put a Protective Supervision Plan in place, or file a Dependency and Neglect action, and “substantiate” the person believed to be responsible for the abuse or neglect.
If the alleged abuse or neglect was caused by someone outside the child's home (a teacher, daycare worker, relative, etc.), and the parent/guardian is protecting the child from that person, DCS will usually substantiate the person who abused or neglected, but not file an action against the parent/guardian.
Child Abuse Substantiation
The investigator, in consultation with his/her supervisor decides whether to substantiate the person accused of the abuse or neglect. DCS will usually substantiate the person if there is any evidence that he/she committed the abuse/neglect.
A person who is substantiated cannot work with children in any capacity. He/she cannot work in a daycare or preschool, teach school, serve as a foster parent, adopt children in state custody, or serve in any volunteer capacity that requires a background check by the Tennessee Department of Human Services. Indeed, the substantiated person is required by law to disclose his/her substantiation on background check applications. Failure to do so is a crime. (see the form at https://www.tn.gov/humanservices/for-families/child-care-services/child-care-resources-for-providers/background-checks-for-child-care-employees.html)
DCS notifies the substantiated person with a letter, that informs him/her of the right to a “formal file review.” This is a process in which another DCS employee, in the department's central office, looks at the file and determines whether there is evidence to support the substantiation. Again, if there is any evidence to support it, it will be upheld.
Another letter from DCS informs the substantiated person of the file review result. If the review upheld the substantiation, the person may ask for an administrative hearing. This is a hearing before an administrative law judge, who is employed by DCS. It is held in one of the DCS offices, not a courthouse. Hearings in the Upper Cumberland are generally held in the Cookeville DCS office.
The administrative law judge hears DCS's proof, and the substantiated perpetrator's proof, then makes a decision as to whether there is “substantial and material evidence” to support the substantiation. This has been defined as “more than a glimmer or scintilla.” In other words, any evidence that the substantiated person committed the abuse or neglect will result in the substantiation being upheld.
Dependency and Neglect
Once the regional office receives the report, an investigator is assigned to investigate the allegations. If the investigator determines that the child is at risk of harm, the investigator (along with other DCS staff) makes the decision as to how to best protect the child. The department can remove the child from the home of the parent or guardian. The law requires that this extreme action only be taken when there is “no less drastic alternative” available to protect the child. For example, if the parent is alleged to have sexually abused the child, or badly beaten the child, removal might be the only way to protect the child from further abuse.
A DCS caseworker can make a decision to immediately remove a child from a parent if there is an immediate threat of imminent harm. In the past, DCS did this with some frequency. However, in 2013 a federal court decision informed child welfare agencies that they were bound by the same constitutional requirements as the police, when it comes to removing children. Since then, DCS has been reluctant to remove a child without a court order.
The juvenile court in the county where the child lives, or is present, can order the child be removed from the parent or guardian. This order is often entered without notice to the parent or guardian – what is known as an ex parte order. When an ex parte order removes a child, the parent or guardian is entitled to a preliminary hearing within 72 hours of the removal. At this hearing, the court determines:
- Whether there is reasonable suspicion to believe that the child was abused or neglected;
- Whether the removal as necessary to protect the child, and
- Whether there was any less drastic way that the child could be protected.
If the court decides that the removal was necessary to protect the child, the child will remain out of the parents'/guardians' home, and DCS will work with the parent to develop a plan that will enable the parents/ guardians to correct whatever problems led to the removal.
For example, if a parent tested positive for a drug, DCS would likely ask the parent to participate in a rehabilitation program, and have a period of sobriety before the child could return to the home. If a guardian spanked a child too hard, DCS might ask the guardian to complete parenting classes that address corporal punishment.
This plan, called a Permanency Plan, must be ratified by the court. Once it is, it becomes an order of the court, and the parent/guardian must comply with it in order to regain custody of his/her child.
The juvenile court often conducts a number of review hearings, over the course of many months, to monitor the progress of the parent/guardian. The court also determines how much visitation the parent/guardian has with the child. Depending on the type and severity of the abuse or neglect, the court may order that the parent/guardian have no contact with the child, or only supervised visits.
Eventually the court conducts an adjudicatory hearing, where DCS must prove that the abuse or neglect occurred. Then the court conducts a dispositional hearing to determine whether the child will be returned to the parent/guardian, or remain in either state custody or the custody of another person.
If the parent/guardian does not agree with the juvenile court's decision, he/she may appeal to the circuit court. The circuit court judge determines whether the child is still at risk of harm with the parent. Should the parent/guardian disagree with the circuit court's decision, he/she may appeal to the Tennessee Court of Appeals.
Protective Supervision Plan
A Protective Supervision Plan is a less drastic alternative to removal. Such a plan allows the child to stay in the home of the parent/guardian, and requires the child's parent/guardian to do, or not do certain things.
For example, if the report concerns dirty living conditions, the department may require the parent to clean up his/her house within a specified amount of time. Or, if the allegation is that the parent spanked the child too hard, DCS might prohibit the parent from using any corporal punishment on the child.