Sadly, in researching this article, there are very few resources that explain parents’ rights when CPS is called to conduct an initial investigation. Believe me, we looked and looked, and had a difficult time finding cases where Courts have specifically addressed a parent’s rights before CPS removes a child.
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; CPS 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 result in the child being removed or the parent being presumed a drug addict. The parent agrees to take the test.
What usually follows is that the parent’s test comes back positive for an illegal drug and the children are removed from the parent by CPS. The drug test may come back for a prescription drug like pain medication or a mood stabilizer and CPS removes the child and determines the parents are unfit. Unfortunately, once the parent submits to drug testing, if there is something, usually anything, in the drug test that is positive, CPS generally will find a way to determine that positive drug test makes the parent unfit.
It is important to understand that CPS cases are civil cases. Meaning CPS should not be charging you with a crime, but rather, if your children are ultimately removed, CPS should be working with you to return your children. However, in some cases, 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. This article deals only with CPS requested drug tests before a child is removed from the parent.
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?” The short answer to all of these questions is “yes” but it is important to understand the law and under what circumstances you may refuse.
Courts have determined that a CPS assessment is a “compelled invasion into a family’s privacy pursuant to state law.” The use of a drug screen by CPS at the initial investigation is not merely used to refer a parent for drug counseling or rehab, but is often used in a punishing way, to remove a parent’s children from the home.
Now that you know that Courts consider a drug test an “invasion” and that CPS will use that test punitively, the question of whether you have to take a drug test during an initial investigation should be considered as follows:
Can the CPS investigator ask me to take a test? Is that legal?: The short answer is legally yes they can ask. The law allows CPS to request a parent take a drug test and 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?: The short answer is no. However, like we said at the beginning, many parents don’t know their rights and agree (aka consent) to a drug test.
If a parent agrees to take the test, the consent has to be voluntarily given. This means that the investigator must demonstrate that when they ask for the test they didn’t threaten you with statements like “if you don’t test your children will be removed” or “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.”
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.