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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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Can a CPS agent overrule a judges decision on granting Temporary

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Can a CPS agent overrule a judge's decision on granting Temporary Sole Legal and Physical Custody to a father after medically proven sexual abuse of child?
I had custody of my daughter for two months after a court order. And I was called last week by the CPS/Child Advocacy agent investigating the case (six months ago!) in PG County to bring the abused child for an interview. I took the child this morning to the interview. The agent came and took the child to her office and returned together with her supervisor and presented me a signed paper (a DSS Form) saying that the "Child needs assistance" because "she cannot stay with me". When I asked why, they said they got my medical records and they found that "I mentioned I had a history of Gonorrhea" on the intake form in 09. Therefore, they allegedly concluded I was the person who sexually abused the child, even though I did not see the child two months prior to her revealing the abuse to me.

Now, I have to show up tomorrow in Juvenile Court in the Circuit Court in PG County where the incident happened. I live in MTG County with the child and the custody order was granted in MTG County by a judge who heard both parents before restricting visitation to mom (supervised visitation).
In fact, the decision to take away the child was based supposedly on an"error" on an intake form at a hospital where I (father) was treated last year for bladder infection and I wrongly "ticked/checked" a box saying "I had a history of Gonorrhea" (according to the urologist!). So it was not the urologist who diagnized me with gonorrhea per se. I heard the news from the CPS agent because I signed for the release of my medical records. I emailed the physician and she confirmed that it was something I checked on the "intake form in 9/2009". But I ever remember checking that box and she said she will amend her records then. I called the CPS agent and reported what the physician said and acknowledged ("an error on medical intake form, not diagnosis"). Since then, the CPS agent would call to let me know that she is closing the case. But curiously, this morning, when I showed up with the child for the abuse interview, she removed the child from me, on allegation that I checked a box saying "I had a history of gonorrhea" on an intake form.

1. Can a Social Worker overrule a Judge's Custody order and remove the child from father?
2.The CPS agent usually tries to reverse any custody decision made in my favor by a judge. And she would order me to return the child to the place where the abuse happened (i.e. to her mom). Is there any conspiracy here, when the agent who is supposed to protect the child sides the mom who allegedly allowed the abuse to happen?
3. Why having a hearing in Juvenile Court to remove the child when there is no proven act of abuse or any revealing evidence that I sexually abused my child?
4. Can an abused child live without any concern with the alleged abuser (father) and be willing to be transported and cared for by the same person? The child keeps on repeating the name of the perpetrator she knows over and over, but the CPS wants only to blame the abuse on me (based on this medical fallacy). Who's integrity should be questioned here?
Please help because I don't understand this reversal of guilt in this case.
A social worker cannot overrule the judge's decision. However, at any point, if the social worker discovers suspected abuse, s/he can remove the child from whatever home your child is in pending a court hearing. You said, "I have to show up tomorrow in Juvenile Court in the Circuit Court in PG County," so the social worker's decision is temporary pending that new hearing. It is strange that it should be in a different county - two counties cannot and should not have simultaneous proceedings about the same child (although they can certainly cooperate in their investigations). There could potentially be a transfer to a new county, but both proceedings cannot go forth at the same time.

It is unfortunate that things are happening this way, but unfortunately, social workers have a great deal of power - not only can they make "emergency" decisions without a judge, but judges usually (though not always) tend to side with the social workers. All you can do is present the fact that there is no evidence that you are a harm to your child whatsoever. If you can get a copy of the form where you are alleged to say that you had Gonorrhea, you can show what really happened on the form (i.e. you were checking another box and the pen mark looked like it was next to Gonorrhea, or you did not check it at all). That may not be possible before tomorrow morning, but if this proceeding continues, it might be beneficial to get it.

Is that enough information to get you started? I would be happy to answer follow up questions or make clarifications.
Customer: replied 7 years ago.
Thanks for your reply and commendable insights about the matter. Here is the truth:


This conspiracy of the social worker started the very first day when the abuse case was tranferred from DC to PG County. I volunteered for a STD test after seeking medical attention for the child. However, after my first interview with the social worker, she informed me that the physician at the Children's Hospital in DC who should test both my ex-wife and me cancelled the test. So neither I nor my ex-wife was tested. I filed for emergency custody of the child following the revelation of the abuse in District Court in PG county where the abuse happened. After grant of temporary custody awaiting the order of report by the judge from the social worker, the case was simply dismissed for unknown reason by a judge other than the one supposed to hear the case. Therefore, there was not custody order in place and I decided to file a new complaint in MTG County where I live and won the custody as mentioned before. I won the custody case because I presented medical records and reports of interviews sent in by all mandated reporters who interviewed the family. But in the reports, the child's mom who had physical custody of the baby "keeps on denying that she saw any sign of abuse" or abnormal behavior from the child. However, I found some undergarments in the bag of the child that she changed and left there the very day that the child revealed the abuse to me, and I found out few hours later that she had vaginal discharge. This was after weeks of refusal of the mom to allow me to have visitation or take the baby to her regular appointments etc.

Also, I never knew who was babysitting my child. But when I had custody of the child the very first week of finding out the incident, the child took me to the place where she said the abuse happened: where her babysitter lives. So I did not talk to the sitter until today to allow the investigators to do their job.

I asked the police involvement in the investigation the very first day of the report but the social worker prevented that. I called the police one day to report the situation because the child has been insiting on the same name of the perpetrator and place of abuse. The police called the social worker and she said she will involve a detective. Few weeks later, I received a call and took the child to the detective's office. After 4mn with the child, she came back and said the child did not want to talk, so she could not proceed with the case. That is, CASE CLOSED. I never heard from her again.
So I am convinced that the social worker and her supervisor are protecting the mom and want to blame the abuse on me because I had not the chance to bring the abuser to them. Because the mom and the sitter who know best the situation decided to hide the facts from me, but the disease betrayed their secret.

1. I have all of my medical records about my urinary tract infection problems which started around 2008 and the treatments I have received. No where in my visits a doctor diagnozed me with gonorrhea? So how can an "error" or "piece" of information on paper take over the very signs of sexual rape/abuse of the child who was under the care of her mom?
2. I can go to John Hopkins Hospital and request the release of my medical records tomorrow before the Court Hearing. I really need to see that "paper that I checked" and what it looks like? That is, the only missing paper, because I have all of the medical exams and reports of the child for the judge's own cross-examination with my records. So do I really need an attorney in this case?
3. What would be the hearing about? The removal of the child from me (because I had past history of gonorrhea)? The removal of the child because there is evidence that I sexually abused her? Or the judge will overrule the custody order put in place by another jurisdiction because the social worker wants to return the child to her mom or send her to a forster care?
4. I don't believe in the CPS allegations that I abused the child. Should I just wait and see what they will present as evidence to the court and fight it with my evidence or expect this situation to escalate in court?
5. Do I need to prepare and bring anything other than my own medical records and expert reports to Court tomorrow?
1. What you're saying makes sense and it should be presented to the judge.
2. An attorney is almost always beneficial (assuming that the attorney is competent). If nothing else, the judge is more likely to give credibility to statements made by an attorney than those made by a parent. But the attorney will also understand what is happening at various stages of the court hearings and what information is relevant to each stage.
3. I cannot say what the hearing would be about, at least not specifically. Based on what you told me, the Court is holding the hearing it is required to hold upon removal of a child from a custodial parent. Based on what you said, it seems that the issue is that they will accuse you of child molestation on the basis that your child has gonorrhea and they now believe that you gave it to your child. If the case has been transferred, the new judge can make a completely different order than the one the prior judge made.
4. I would expect the situation to escalate in court. I have never seen social workers turned down on an emergency request to detain a child - although I'm sure it has happened.
5. Because you have not been given written documents explaining the basis for the court hearing tomorrow, it is difficult to determine what documentation you need to bring. Certainly the medical records and expert reports appear to be relevant, but there may be other documents that you cannot predict without knowing exactly what the social workers are going to allege.
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Customer: replied 7 years ago.

Thanks for the succinct answers and predictions for tomorrow.

I would love to see them coming up with something different in my medical records that I don't know or heard about first hand from the doctors who consulted and treated me in the past years. Why doctors would hide information about my contracting a STD? I had repeated blood and urine exams during the past two years but no lab work came positive with STD.

For me, this child removal hearing is baseless and I don't have to worry my mind for something have not done or been aware of it. I know social workers have power because the system is what it is in this country. But not all judges side with social worker and the gruesome lies and imperfections. I will do what is in my power to bring that child home. This is pure conspiracy and it won't work.

I have lot of facts and evidence to prove them wrong. Unless a medical expert can convince me of what I have not experienced.

My custody case was heard in MTG County (the new jurisdiction) where I live and the abuse hapened in PG County where the mom resides. In five months the mom moved 3 times and does not want me to know where she lives despite the cancellation of her protective order.

Anyway, I will get some sleep and get to the Court tomorrow to hear and see what those social workers will bring up as new evidence in this case.

I don't think I will get a Public Defender to accompany me tomorrow. I want to go pro se, but in case there is something fishy, I will request continuation to come back with my attorney.
Thanks for your help and hope to hear from you soon.
Let me know what happens!
Customer: replied 7 years ago.
Hi. Need to communicate with you about my case. Let me know when you are available. Thanks.
I'm here right now but do not know if you are online or how to go into chat mode. Also, the chat function doesn't seem to be working this morning. Do you want to tell me the questions you still have and I can try to respond when I get the message?

Edited by Steven Kincaid on 10/22/2010 at 6:04 PM EST
Customer: replied 7 years ago.

We had the hearing yesterday and it seems the social worker is protecting my wife rather than the child. She went through my medical records and dwelled on the transcribed "error" on the intake for which says "I had past history of gonorrhea". However, the social worker's testimony was just the rehearsal of what happened in during the last 5 months after the abuse of the child. She based her allegations on my past medical history to imply that I "sexually abused and transmitted disease to my child".

I presented my old and new records of exams during the last two years in court where no doctor said I had gonorrhea. So what is the object of removing the child because of an old story on paper that has no effect in what happened to the child?

I spoke with the doctor and she said she will leave the corrected version of my records to take to the court on 10/29. But I am thinking subpoena her to come and testify.

I had a Temporary Custody Order in place when this senario started. And I think that the jugde's decision should remain in place until they found me guilty of any abuse on 10/29 or thereafter. However, it seems that the judge hearing the case de novo in PG ignores completely that order. Though the PG judge attempted to talk to the judge who issued the Temporary Custody Order in Montgomery County,. it seems the jduge in Montgomery county is not aware of the underground or fallacious allegations of the social worker.

So to use my custody right, I went to the Circuit Court in Montgomery County today and petitioned for Emergency Enforce of Temporary Custody. And the judge assigned the case granted my petition this afternoon. Right now, I have the order with me and want the police to return the baby to me awaiting the next hearing on 10/29 in PG.


Do you think I can go ahead with the order and ask the police to return the child to me tonight? Or should I withhold the Order until Monday and show it to the Judge who issued the Temporary Custody Order in Montgomery County? This last move is to make the MTG County Judge who issued the Temporary Custody to be aware of the enforcement order issued by another judge this afternoon? Is it a right way to enforce the order tonight or wait until Monday to do it? Lastly, should I hold on to the enforcement order until the next hearing to not compromise my chances with the PG judge?
Your current scenario is confusing me a little. What happened at the hearing in PG county yesterday? Did the judge make any custody orders?

You said, "it seems that the judge hearing the case de novo in PG ignores completely that order." In what way did the judge ignore the Montgomery order? Did the judge enter a different order? Did the judge say your child would remain where she is now or did the judge just not say anything?

When you went to the Circuit Court in Montgomery, did you tell them about the pending case in PG? If not, I absolutely would NOT try to enforce it as it looks like you are doing something surreptitiously.

Also, the order you are talking about giving you custody, is that a juvenile court order or a family court order? Juvenile court supersedes family court custody orders.

I would be extremely cautious about trying to enforce the order you got today.
Customer: replied 7 years ago.

Thanks for the reply. In fact, we had a hearing on Thurday and the social worker was the first witness to testify. And the I started my testimony and the judge decided to continue the case because it was getting late at the court. Therefore, the judge set a new date for 10/28. The judge has not issued a new order. She left the decision of me taking the child back home or to school with the DSS when my attorney introduced the idea. However, instead of placing the child in a forster care, DSS or state care, the social worker simply returned the child to her mom, who could not take her to school or her therapy sessions. not only that, the order in place restricts the mom from having unsupervised visitation with the child. And the DSS left the child alone with her mom for three days. There is violation of the order in place here and that is why I went to the court that issued the order for its enforcement.

My petition for enforcement was granted and I called the police who returned the child to me since yesterday night. The child is right now with me pending what will happen on Monday or Friday, 10/29 at the Juvenile Court. I want the courts to talk to each other because it seems that the new hearing is the repeat of the first one that happened in family court in MtG County.

I explained how the social worker removed the child in my petition(she met with my wife and wrote a report to the Juvenile Court alleging that I had past history of gonorrhea. Therefore, the child should be removed).

what is strange in this case is that the social worker was well informed of the information on the form. Explanations were given to her about my past urinary problems and the correction the doctor said she will make because she did not diagnoze me with gonorrhea per se. Not only that, after all this information, the social worker called me many time to say she was closing the case. So how come she sudden realize that I am the person who abused my daughter because of that piece of "erronous" information dating back to last year?

Anyway, the only order in place is the one issued by the family court in my favor two months ago. So I see nothing wrong with my move to enforce that order because the social worker is abusing her power and misleading the court to believe her fallacious story of me molesting my child. I am aggressive because this is the thrid time that the social worker attempted to overturn custody decisions issued in my favor.

Since she said loudly that the child has never told her that I abused her. What is the importance of her allegation if not to side my wife who allowed the incident to happen under her supervision? Unless the judicial system lacks common sense, but I don't see what I has done wrong to my child than providing protection and mental reconfort to her the past 5 months.


1. I intend to go to the family Court in Montgomery County on Monday to give a copy of the enforcement order issued yesterday to the Clerk of the Judge who issued that Temporary Custody Order for information and cooperation with the PG Court. That is, it was another Judge who granted my enforcement petition yesterday. Isn't that an appropriate way to get the two judges and courts cooperate and decide which court should definitely handle all matters related to this abuse?

2. We have the divorce and custody hearings in Montgomery County Circuit court with appropriate schedules. even though the incident happened in PG, the child have been living with me in Montgomery County and going to school there. I don't know why we are going back and forth in the two courts when no finding emerges in the social worker's investigation? should I be balmed because I cooperate with the DSS and Police and sought medical attention for my child?

3. Why the DSS refuses to thouroughly involve the police in the investigation at the beginning knowing what the know about the case? Anyway, I am not letting the power given to the social worker to destroy me and prevent my child from protection.

4. Hope to hear your reply about the enforcement of the order yesterday pending the hearing on 10/29 as well as the idea of fully informing the judge who first issued the Temporary Custody Order. As a reminder, the only order in place is the one issued by the Family court, which the social worker is overriding by her allegations.

My one concern is that you say that the judge "left the decision of me taking the child back home or to school with the DSS." Although that is probably not an order (or if it is, not a valid order) it does show the intent of the judge to give the power to the social worker. When something like that happens, you have to balance the risks of angering the judge with the benefits of protecting your child. It is just a judgment call and I hope you made the right call. At least you know that right now your child is protected.

I think it is extremely important that you go to the family Court in Montgomery County on Monday to give a copy of the enforcement order issued yesterday to the Clerk of the Judge who issued that Temporary Custody Order. This shows that you are not going behind anybody's back and you are just doing what you think is right.

If the juvenile court explicitly allows it, the family court could have concurrent jurisdiction. It is very strange to open a juvenile court case without any orders being entered. Usually, if you can protect your child through family court, juvenile court does not get involved. I am not clear as to why a case was opened in the first place or why no orders have been entered.

I cannot really speak to DSS's relationship with the police, except that they are not required to cooperate with or agree with the police investigation.
Customer: replied 7 years ago.
Thank you again for your valuable insights. I do have a Public Defender (a lady) but she seems not to understand the underground motives of the social worker and her rigged investigation about my daughter's abuse. I talked to her yesterday but she was so soft in her positions. Therefore, I told her about my move to enforce the granted petition in Montgomery County. I concur with your idea of my move and thank you for that clarification.
I will hand the copies of the Granted Petition to both judges so that they could cooperate and debunk the allegations of the social worker. It is wierd to me too to see that case in PG. A master has heard me and my wife and planned everything regarding our divorce and custody related to the abuse of the child- Custody Evaluation, Co-Parenting sessions, divorce hearings etc.

Anyway, I won't let go the child because I am in my rights unless the courts decide something against me. I am ready to appeal any decison if I can.

My next move is to subpoena the doctor for the 10/29 hearing. I will email her tonight for her opinion. The Public Defender has the same idea but she wonders if the judge will allow the doctor in at this "shelter hearing". Do you think that the doctor can be a witness during what they call "shelter hearing". Or can she only be a witness during the "Adjudication Hearing"?

I believe that this case should be heard in Montgomery County where I and the kid live and more cases are pending?

I appreciate your truthfull answers and worthy advice. I will keep in touch and let you know about my steps on Monday. Hope to hear from you.
On the one hand, a shelter hearing is not a full trial and the judge can limit testimony (and in fact, does not need to take any testimony if s/he doesn't want to). On the other hand, it is directly relevant to the issue which is whether you have an STD that could have been transmitted to your child through abuse. Since this is the ONLY evidence that the social worker has (the medical record), the doctor's testimony would be highly relevant in clarifying that record, so the judge might allow it.
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Customer: replied 6 years ago.

I wrote last time to say that there is no other custody order in place than the one granted to me, and restricting the visitation of the mom. That is, her visitations with the child must be supervised. Since the Temporary Order was entered, the mom showed no concern for visitation with child or called if she could have visitation until Wednesday that the child was handed over to her by the social worker. So isn't it violation or contempt of court order it return the child to her mom and leave them alone?

I effectively took the "Courtesy Copy" to the clerk of the judge who issued the first Custody Order. The judge was there and he came out to question his clerk if everything was ok. Then I left with the child. On our way back from the court, the social worker called in order to inquire about the way the child was returned to me. I said I filed a petition in Montgomery County Circuit Court and a judge granted my petition on Friday. Then the PG police served the order to my wife and the child was returned to me on Friday night. This time, the social worker became cooperative: she said automatically that the case has to be transferred to Montgomery County.

Again, she called later in the afternoon to say that she was not aware that there was a cutody order in place. She told me she learned about the order in place when she returned the child to her mom. And around 4PM, she called again to say that her lawyer said I have to return the child to her mom. That is, the social worker's decison or petition supersedes a judge's order. I told her it was the police who gave me the child and I cannot return her to her mom as a contempt of court order.

1. To my understanding, the CINA is an emergency petition file to remove the child because the child is really in danger or neglected. In my case, I have been with my daughter since July 2010 when a judge in PG granted me Temporary Custody based on her sexual abuse. Even the last Temporary Order has lasted two months already. So how come somebody can go to court and say that my child is in danger and they want to remove her? If the allegation is based on that piece of info on my medical records, the worker is just misleading the court.

2. Can the worker's petition or report supersede the judge's order in this context?

3. I whatsoever represent no danger to my daughter and many people around us know it and can testify. I discussed the piece of information on my medical records with the social worker two months ago. So how come she ignored what the Doctor told me to report to her?

4. I am not resisting any decision entered by the PG judge hearing the case. But since the worker's allegation was not substantiated in court on Thursday when she testified that "the doctor has not diagnosed me with gonorrhea. But she based her petition to remove the child only on what the nurse transcribed on my medical records"? Consequently, why should I have to relinquish my right to the mom?

Please help me understand why should I return the child to her mom in violation of the Order? That is, the mom has supervised visitation, which cannot technically allow her to live with the child alone. Why the worker's petition should supersedes the judge's order in this non emergency situation here? The child is attending school and she missed classes last week and her teacher emailed me that they missed her. The mom don't know where the school is. She can't drive the baby to school and it is getting colder.
I honestly don't know if you should return your daughter to her mom. On the one hand, if there really were evidence that you had harmed your daughter, the social worker would have the right to temporarily remove your daughter pending a removal hearing. The question is whether she can do so now after receiving notice of a newer order that says otherwise. I think this is a really fuzzy issue. If the social worker's lawyer says that you have to return the child, maybe you could suggest that their lawyer talk to your lawyer and have your lawyer call you. You can ask them to provide your attorney with the court order or a citation to the law that says that your court order is not valid and that you have to return your daughter. The only thing I could see is that if the judge said that she was leaving placement up to the social worker, maybe that was intended to be an order. Maybe it became a written order and you didn't realize it? If not, then you might want to demand something in writing (a law or an order) explaining why you cannot use the court order you have).
Customer: replied 6 years ago.
This matter is becoming ugly. Another social worker from PG came with Montgomery Police to remove the child yesterday night at 10:30PM. I asked the social worker if there was a new order, and she showed me the same form they gave me the last week to meet them in court (Form -Report for Limited Custody). That is all the paper the social worker showed to remove the child in contrary to the Order in place.

I managed to get the intake Form where the error appeared in 8/2009.It is an error that is easy to interpret, because I first said NO I did not have sexually transmitted diseases to the Genitourinary question. I signed a release form this morning so that the nurse who consulted me can talk to my lawyer. My lawyer called to let me know that she received a call from the nurse and she is planning to come to court to testify or explain the situation.

1. Can the nurse be able to testify at that "Shelter Hearing" on Friday, 10/29 and allow the judge to stop that mock trial?

2. Do you think the nurse as witness can only come to court if there is an "Adjudication Hearing"?

3. My lawyer has already faxed the subpoena to the nurse and her legal department at the hospital. Do I have to insist on the nurse's presence in court or do you think she can write a letter explaining her testimony about what she really know about my medical records?


I requested my m