Can CPS Force Me To Take A Drug Test?
Sadly, in researching this article, there are very few resources that explain parents’ rights when CPS conducts an initial investigation. The number one question in CPS cases is: Can CPS make me take a drug test?
In handling hundreds of CPS cases, our office regularly sees the following scenario:
CPS receives a call that a child is being abused or neglected by a parent
Child Protective Services knocks on the parents’ door to discuss the situation
The parent answers and CPS tells the parent they must take a drug test
The parent wants to decline but is afraid that declining the test will mean CPS will automatically take the children
The parent agrees to take the test
What usually follows is that the parent’s test comes back positive for an illegal drug and CPS takes the children from the parent.
CPS can also take your children even if your drug test comes back positive for prescription drugs. For example, you test positive for a pain drug, or a mood stabilizer. CPS removes the child and determines you are unfit.
Unfortunately, once the parent submits to drug testing, CPS generally will find a way to determine that positive drug test makes the parent unfit. This is true even if you test positive for legal, prescription drugs.
It is important to understand that CPS cases are civil cases. Meaning CPS should not be charging you with a crime. Rather, if CPS takes your children due to drug use, CPS should work with you to return your children.
Even in the best circumstances, there are situation where parents who are the targets of CPS drug testing can be charged with the crime of abuse or neglect.
That’s why, in our opinion, it is important for parents to know their rights when CPS knocks.
So at this point you may be asking:
“What are my rights?” “Can I legally refuse a CPS drug test?” “Can CPS even ask me to take a test?”
You absolutely have the right to refuse a drug test offered by CPS. Courts have determined that a CPS assessment is a “compelled invasion into a family’s privacy pursuant to state law.” Basically, Courts have decided that CPS doesn’t usually offer a drug test at an initial investigation to refer a parent to rehab or drug counseling. Instead, CPS is sneaky. They usually use drug testing as a way to punish parents and remove children from their home. This is why IT IS NOT ILLEGAL to refuse a CPS drug test.
So here’s what you need to know.
Can the CPS investigator ask me to take a test? Is it legal?
The short answer is legally, CPS can ask you to take a drug test.
There is no penalty to CPS or the State by the investigator making a simple request.
Do I have to take the test if they ask?
Like we said at the beginning, many parents don’t know their rights and are afraid that if they don’t test, they will be arrested or charged with a crime.
CPS cases are civil cases. Unless the CPS investigator has a warrant for your drug test, you can absolutely refuse.
What happens if I didn’t know my rights and took a test?
If you agree to test, you agreement must be voluntary.
This means that the investigator must demonstrate that when they ask for the test they didn’t threaten you.
Many times, our clients report that the CPS investigator told them “if you don’t test your children will be removed.” We also hear “I will have to send your children to live with a relative if you don’t test.” Or “if you don’t test, you will be presumed dirty and your children will be taken.”
These statements can be seen as threats and it’s possible to have your drug test thrown out if CPS makes threats to get you to agree to drug test.
Plain and simple, if you agree to take the test, the consent has to be given freely and it is up to CPS to prove that you agreed and they didn’t threaten you.
What If I Refuse? Can CPS Force Me To Take The Test?
If you refuse, CPS would need to obtain a search warrant to compel you to take the test.
The reasons and procedures for CPS to obtain a search warrant exceed the scope of this article.
Needless to say, CPS can obtain a search warrant to force you to take a drug test.
If you still refuse, the refusal can be held against you and your kids will likely be removed.
Unfortunately, many parents don’t know the law and are afraid to tell CPS “no” when they are asked to take a drug test.
We hope this article has provided you some guidance on what your rights are as a parent if CPS is called and requests a drug test. If you or someone you know needs a family law attorney, we can help. Call us today at (702) 433-2889 or fill out our on-line for more information.