Right To Appeal Founded CPS Investigations

     Unfortunately for most, we don't know our rights before that dreaded knock on the door or call comes from a CPS worker stating they have a report to investigate and end up in the clutches of "doing what they say." It's stressful to say the least and often times parents find them selves "founded" by CPS for neglect or abuse. 

    A lot of people don't realize that the standard of evidence needed for these investigations are not the same as in criminal proceedings. As the CPS findings are considered administrative the scale they use to deem someone founded is on a much much lower standard than that of "real" court. 

    Most agencies operate on the preponderance of evidence standards. Which means that only 48% of what is said needs to sound like it could possibly be true.  Doesn't seem fair or right does it?

    In Virginia being founded for abuse or neglect comes on a level scale i.e. Level 1, Level 2, Level 3 and so forth. It can be based on abuse or neglect. If you checked out the other blog post Here, you'll find in the manuals the Definitions of Abuse and Neglect. Depending on the level of finding you may or may not be placed on the Virginia Abuse and Neglect Registry.  Virginia charges $10 to search the registry to see if your name is on it and that can be done so at this link - Virginia Abuse And Neglect Registry

    Now, if you have been Founded by DSS CPS for abuse or neglect, they are required to notify you by mail. The state says they tell them to certify mail it (requiring a signature) but more often than not that does not occur and most go not knowing of their Right to Appeal Findings. 

Typically the founded letter will read something along the lines of this:

    "Dear Such and Such, 

We would like to thank you for your cooperation in the recent investigation regarding (insert case information), this is to notify you that you have been found for Abuse/Neglect Level (1,2,3) and will placed on the Virginia Abuse and Neglect Registry for (X) amount of years. If you do not agree with this decision you can notify the department in writing that you would like to file an appeal within 30 days of receipt of this letter." 

    Its important to note that you would like to appeal before that 30 days is up, the department then has 30-45 days to notify you of receipt of the appeal notice and get an informed local conference date. This first initial appeal would be held at the local department level. 

    If after having the informed local conference appeal and the decision is still something you do not agree with you can appeal to what is called the administrative/state hearing level. This level of hearing is conducted with the local department in front of a Virginia DSS State Fair Hearings officer.   You are absolutely allowed to have an attorney at this hearing, CPS absolutely will have an attorney representing them.  We (personally) went "pro se" for this hearing, however I do not recommend that for everyone. You will be allowed to submit evidence and subpoena what is needed for your appeal prior to the appeal date directly to the State Hearings Officer. Typically it is held with the Social Worker, Supervisor, a City/County Attorney appointed to the CPS Worker, You and the hearings office. The hearings officer records the hearing and you have the right to record it and to request a copy from the state. I highly recommend doing both, recording on your own, and requesting their copy. Once this hearing is done, you will be given the opportunity to submit any other evidence that may have came up or was not presented prior to the hearing. Typically the Hearings officer will hold "the record" open for 7-14 days after the hearing to allow both parties to submit any needed evidence. Once the record is officially closed, they have 60 days from the date of closing to render a decision and mail it out to all parties. Also note that the burden of proof falls on the department to prove that the findings were established by following laws and policy by a preponderance of evidence.

    If for some reason at this level you still did not reach your desired outcome you again have 30 days to notify in writing that you would like to appeal. This appealing will bring the case in front of the Circuit Court.  This becomes the final appeal, where the circuit reviews the records from the State Fair Hearings. It is probably good to note that the department at this hearing would be represented by the Attorney General. 

    Unfortunately in Virginia when it comes to the administrative appeals process, the circuit seems to be the last stop for appealing the findings. I have yet to find any cases, codes or procedures that state whether error in these cases at circuit level can be appealed to the Supreme Court of Virginia or not. 

    Hopefully one of the above ways finds its way to giving you results, not always the case but try to stay positive about it. In my case my appeal was held a year after the findings as the notification of being able to appeal was never sent to us. This is typically done at the closing of the investigation. In Virginia CPS has 45-60 days to complete an investigation. It becomes 90 days if they proceed to get the courts involved. 

Should a case be opened be sure to be on the lookout for the founded/unfounded letters so you are not stripped of your right to appeal these findings. 

You can find the states less detailed version of it Here.