January 2001, pg. 46. The Constitution Sleeps in Child Protective Cases.

Maine Bar Journal

2001.

January 2001, pg. 46.

The Constitution Sleeps in Child Protective Cases

Maine Bar JournalJanuary 2001The Constitution Sleeps in Child Protective CasesJohn S. Edwards, EsquireParents have a constitutional liberty interest to raise their children free from governmental involvement.(Fn1) In child protective cases, the law often circumvents parents' rights. The State legislature has enacted laws that give the Departments of Human Services extensive powers to intrude into the family unit, thereby eroding any constitutional interest a parent has in raising a child. Moreover, the executive, legislative and judicial branches often ignore the minimal legal protections given to families.

Parents have rights in child protective cases. Most parents are unaware of these rights. When the Department of Human Services initially contacts parents to investigate allegations of abuse and neglect, it does not inform the parents of their rights. By the time an attorney is appointed to the parents, they have effectively waived their rights and the Department has gathered information to use against them. For example, although a parent has the right to prevent the Department from entering his home without a court order or search warrant, the Department arrives at the door and enters without informing the parent of this right. As a result the Department is able to gather information to use against the parent in later proceedings. Similarly, the Department will call a parent or interview a parent without informing them that any information they give can be used against them.

In order to protect the family unit from a loss of constitutionally protected rights, the Legislature should enact a bill of rights for parents and children. First, the Department worker should be required to notify the parents of their rights before entry into the home or commencing any questioning of the parents. The warning should include the following as a minimum:

I am a child protective worker for the Department of Human Services investigating allegations of abuse by you against your minor child or children. If I believe the allegation is justified, I may petition for removal of your children and require you to undergo services to the satisfaction of the Department to remove the risks or conditions that the Department considers necessary for the safety of the child or children. If you fail to correct these conditions in a time reasonably calculated to meet the child or children's needs, the Department will file a petition to terminate your parental rights.

You have the following rights:

1. You do not have to allow me to enter your dwelling without a court order. Anything I observe in your home can be included in my report and used in court against you.

2. You are not required to speak with me. Anything that you say may be used against you in any future hearings.

3. I can speak to your children only with your permission. The children have a right not to speak with me under the Privacy Act. Anything the children say can be reported by me directly to the...