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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 111450
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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My wife and i are grandparents. We had our grandchild for 2

Customer Question

My wife and i are grandparents. We had our grandchild for 2 weeks preceding this event. My wife took baby to doctor. Babys routine appointment went fine. Happy and healthy. Wife told doctor about our daughters drug issues. Doc calls cps. They come to our house next. I, the grandfather was not home. They checked out house. Everything good. Wife felt pressured to let them in as they said they "needed" to get in. She did not know her rights. Took drug test. They say failed. Neither one of us EVER arrested for anything..EVER. They took baby. Later, in a meeting with my daughter and one of her friends at my daughters house, CPS worker openly pulls out my wifes disputed results and lets my daughters friend see them. This person is not involved in any way in this case. I have told you the very short version. Now this girl has talked and word is spreading in our small town. This is Indiana. What can we do? There are also many other state code violations. Thank you.
Submitted: 2 months ago.
Category: Legal
Expert:  Ely replied 2 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. "What can we do" is a very open ended question. That depends - what are you asking about?

1) CPS worker revealing drug test results to another party?

2) Getting custody of the child?

3) Helping your daughter get custody of the child back?

4) Etc.

Also, does your daughter LIVE with you, or not?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 2 months ago.
No she does not. Getting my granddaughter back is obviously a concern. I have filed A Sworn Declaration, An Objection to Errors in their initial petition, and notarized statements from my daughter and her friend as to what he did in sharing those results. Can he be sued for divulging these results? I have also done research into some very recent Indiana Appeals Court decisions regarding "one isolated positive drug test with nothing more" as grounds for removal.
Expert:  Ely replied 2 months ago.

Thank you.

1) CPS is not liable for sharing the results, arguably. This is because CPS is not covered by HIPAA, which is the federal law for patient privacy when it comes to medical records. See HERE. And arguably, this became public record once CPS filed in Court to get the child anyhow (which they did - they cannot take the child from the parents without a court order). In short, this would be a weak case.

2) Understand how CPS works. They cannot force an interview, and they certainly cannot simply take the child away from the parent without a a court order. However, they have a mandate from the state to stand in front of the Court for any child that they feel is being abused/neglected. This means that if they feel that the child is neglected/in danger, CPS may decide to take the matter to court and ask to have the court agree that parental rights should be suspended (or even terminated in serious scenarios) until the parent show to the court that court that they are an able parent. Now, while CPS has the "ear of the court," this does not mean that the court always agrees with CPS and if the parent challenge their claim, it may be denied. But this is a risk. CPS often uses misleading, cajoling, and threatening tactics, so be careful. An attorney is recommended if one decides to meet with them, because the attorney can quickly cut their attempts to intimidate the parent down.

3) You are not the parents - the daughter is. This means you have limited standing with the Court to demand custody for yourself. See HERE. But your daughter may wish to go to Court to fight for custody, stating that the drug test is disputed and that in the end, one positive should not be enough to take the child away and the Court may simply send the positive party for drug classes, instead. You are not going to get anywhere with CPS at this point - the relief from this lies with the Court.

Please note: If I tell you simply what you wish to hear, this would be unfair to you. I need to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 2 months ago.
Indiana code 31-33-18-2 states that there are only certain agencies that information can be shared with.
Expert:  Ely replied 2 months ago.

That code does not extend to drug test results. Also again, remember that those results are now public record if CPS has filed in Court since they would be part of evidence.

CPS can share drug test results. I am sorry, I wish I could say otherwise.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 2 months ago.
Ok. Well in Indiana, any and all CPS cases are entirely private. No public record. Private courtroom. But ok. Thanks. I know my daughters attorney seemed to think this was a violation as they can't just go tell whoever they please. That is one of the problems here. No transparency. So my wife could lose her job or standing on a test that may not be accurate?
Expert:  Ely replied 2 months ago.

Let us take a step back. Who did they reveal the test to? Besides your daughter? Or, only your daughter?

Customer: replied 2 months ago.
My daughter had a friend over. CPS came to talk to her. Pulled out results, let her 25 year old friend see it, and talked about it openly..
Expert:  Ely replied 2 months ago.
Thank you.
There is a difference between inappropriate and illicit.
Here is the statute on point:
Indiana Confidentiality of Records Ann. Stat. §§ 31-33-18-1; 31-33-26-7
Reports made under this article and any other information obtained, reports written, or photographs taken concerning the reports that are in the possession of the Division of Family Resources, the local office, the department, or the Department of Child Services Ombudsman are confidential. The department may adopt rules to ensure that the confidentiality of and access to reports of child abuse or neglect in the child abuse index are maintained as provided in this chapter.
Now, if it was your wife that tested positive allegedly, but the your daughter's child that was taken, then your daughter would normally have the ability to see the information that CPS has to make their claim before the Court. So she would already have access to that test via court or via request for production, etc. Since this is then likely public record, then it would not be a violation to produce the record.
In addition, if the daughter expressly or via implication stated that her friend can stay for the interview/discussion, then she (arguably) waived her right here as well unless she expressly stated that the friend can stay for the discussion/interview but for the agent NOT to reveal any record.
Finally, because this was a state agency, one would have to show GROSS NEGLIGENCE and/or MALICIOUS ACTION for them to be liable, as state agencies enjoy a higher liability protection than private citizens.
I am afraid simply speaking, that revealing the record is likely not enough to file a lawsuit over.
Finally, your daughter seems to be focusing on CPS in retaliation, etc. That is normal and natural. However, she may wish to focus more on the COURT matter and to litigate to get her child back before the Judge as that (I am guessing) takes priority.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 2 months ago.
The original complaint was not a complaint. Doctor called cps, said grandparent had baby in. No neglect apparent. CPS is hanging their hat on one alleged dirty test. I have had one speeding ticket in my 50 years. Single father for 12 years. Wife. No history nor arrests. 2 speeding tickets in 8 years. They have cited Indiana Code 31-34-1. None of those things can be proven or are evident. Baby was at doctor August 3rd, CPS shows up August 4th. Doctor let my wife leave. Wife tested on 4th. CPS gives great review of house and baby. Then leaves and returns to take baby the 9th. Appeals court stated that if CPS leaves child on day of test, how can they claim imminent danger 5 days later?
Expert:  Ely replied 2 months ago.
CPS often uses misleading, cajoling, and threatening tactics. The CPS attorney may have exaggerated the facts in Court. This is not unusual.
The point is to show the Judge that there is no danger of abuse/neglect.
If the daughter has been placed on a PARENTING PLAN, then she can either:
-fulfill it if it promises to get her child back to her if she fulfills it successful, or
-argue that the plan is not necessary as the child is not in danger.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 2 months ago.
I knew my daughter had access. My daughter was already made aware of the failing 3 weeks before hand. She said she never asked, he just produced it. He was also cussing and acting rather thuggish, as noted by myself and her attorney as he answered hos phone call from my daughters attorney " yo". Those are all moot, i understand. I have filed the objections to all information omitted and falsehoods presented. We ll see
Expert:  Ely replied 2 months ago.
Did you see my last response? We may have posted at the same time.
Customer: replied 2 months ago.
Thats what we are doing. They disqualified my 22 year old step daughter for a 2 and a half year old OWI misdemeanor. No where in the code is a misdemeanor that does not involve a child a diqualifier. And I as the blood grandfather was never even contacted by them and she was already in foster care by time I had laid eyes on the case worker for the first time. I asked for immediate background check and drug test. Nothing. My wife said she would leave house if it meant baby could stay with family. They said no.
Expert:  Ely replied 2 months ago.
I see. At this point, I am not sure what exactly you are asking. Can you please clarify? For example: "What factors are used by CPS to qualify alternative relatives with whom to place the child?"
Customer: replied 2 months ago.
I know reasonable efforts, which are very subjective. There is too much to list really. I do not think that disqualifying against code is reasonable. I will fight and put everything on the record. I think thats best for any kind of appeal. True?
Expert:  Ely replied 2 months ago.
No.
If CPS has custody of the child, it has the decision of where to place the child at its discretion. So you cannot "force" CPS to qualify you. It is wholly within the discretion of CPS. Subjective factors are used, but they are - well - subjective.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 2 months ago.
Wow. A little too much power in my opinion. No due process. Just a biased, baseless grab at federal funding. No life or limb danger. Well thanks.
Expert:  Ely replied 2 months ago.
You are very welcome. Good luck, and please don't forget to RATE my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please use the REPLY or SEND button to keep on chatting – I want you to be satisfied.
Customer: replied 2 months ago.
state codes are just guidelines. Not law?
Expert:  Ely replied 2 months ago.
No, I never said that.
However when it comes to placing the child into guardianship with a family, CPS has discretion with whom to place it with.
The best interest of a child factors you are thinking of likely (under Title 31 Article 15) are for Court to decide custody on.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 2 months ago.
They actually referred to 31-19-11-1(9)(c) with respect to relative placement. They have since backed off CHINS and suggested informal adjustment since I have spent about 60 hours doing my own paperwork and research. My daughter tesyed negative but she was in jail for a misdemeanor probation violation when they interviewed her. She incriminated herself and now they are using her words. I wish I could have told her not to speak with them. They do operate under the color of law to intimidate. Is there 4th or 14 amendment recourse?
Expert:  Ely replied 2 months ago.
IC 31-19-11-1 deals with adoption, not placement.
Customer: replied 2 months ago.
Heres what he handed me:https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.in.gov/dcs/files/13_6_Evaluation_of_Background_Checks_for_Unlicensed_Placements.pdf&ved=0ahUKEwj1x-i23IDPAhVL8CYKHVJXB6UQFggnMAE&usg=AFQjCNFaOfzCLdKEJxQXCOBgryLlGlDlnw&sig2=aAoZaEHF1caRoA3ryC2ZVw
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am a DIFFERENT CONTRIBUTOR as your previous contributor had to leave.
Child protection social workers are the most negligent, incompetent and abusive people you will ever deal with. They really do not care about what is best for the child, they care about whatever their own personal bias is and whatever will make their job easier. They will even lie and fabricate evidence to support their warped ideals.
With that said, family placement, if possible, is the preferred means of placing a child. If you are a fit person and have suitable premises for caring for the child, then where you have to beat child protection is in court. You do have to go through a proper investigation and background checks for both child protection and the courts to agree to allow you to have the child, because they require that proof of your fitness.
More and more courts are seeing through the lies these social workers tell, so if you bring in your evidence to the court about your being fit to take family placement, then you can most times convince the judge to agree to give you such placement.
Customer: replied 2 months ago.
Thank you. I have filed my own objection to petition and sworn declaration. There are so many falsehoods and inconsistent statements it's mind boggling. We have filed for re-placement and should have that any day now. So if they backed off of their initial CHINS filing and have went to an informal adjustment, can I use that as an admission of some sort as to their confidence in their case? The case worker is new and has made many mistakes
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your reply.
Of course there are, the social workers are usually pathological liars, they make up their story to fit the outcome of the case they want to see and it has nothing to do with what is best for the children.
Yes, you can use the downgrading of the case to show that even they know it is a weak case.