As attorneys that handle DCPP cases, by the time we get asked this question, often the door has already been opened both literally and legally. This is because when DCPP investigates, most parents comply because they do not know their rights, they think they have nothing to hide, they are worried that DCPP will take their kids away, or all of the above. This post will address a parent’s legal rights and obligations if DCPP comes knocking.
First it's important to understand what the Division is obligated to do under the law. DCPP is required by law to investigate every referral it receives about potential child abuse or neglect. In order for them to complete their investigation, the Division has to speak to the parent on whom the referral was made (the “offending” parent) and the child or children involved. While the Division can speak to additional people (such as teachers and other relatives), at minimum it must speak to the child and the offending parent before it can make a finding as to the supposed abuse or neglect.
Q. Do I have to speak to the Division if they knock on my door?
A. Not unless they have a court order. Generally, DCPP will try to speak to parents without a court order because it is easier and most people will speak to them without one. (If DCPP has cause to believe the children have been harmed or are in imminent danger they can remove the children, but this post is addressing investigations which do not involve removing children).
Q. What happens if I refuse to speak to the Division or allow them to interview the children?
A. First of all, parents should know that if the children are in school, the Division can speak to them at school without the parent’s permission. If parents refuse to speak to the Division, or refuse to allow them to speak to their children, one of two things will happen: DCPP will decide to not pursue the matter any further or it will go to court to obtain what’s referred to an Order to Investigate. This is a simple summary proceeding of which the parents receive notice (usually of only a few days) and appear in Court where the Division’s attorney (the Deputy Attorney General) will argue why the Court should issue an order allowing it to complete its investigation.
By the time parents come to us because of DCPP involvement, they have usually already spoken to the Division and have missed their opportunity to refuse their intervention. However, sometimes we are able to counsel parents through this decision before they have consented. Whether we advise a client to refuse to comply with a Division investigation depends on the facts and circumstances of each case.
Sometimes it does not make sense to refuse compliance because chances are very high that the Division will succeed on obtaining their Order to Investigate. The Division does not have a very high burden in these proceedings, they only have to demonstrate that continuing the investigation is in the best interests of the children. However, many referrals are meritless, can turn into fishing expeditions, or arise in the context of divorce. In these circumstances, it can be worth going to court to fight the Order to Investigate. It is important to remember that DCPP is used to getting parents to comply with their investigations which means they do not always have sufficient legal basis to succeed in court when challenged.