At best, CPS/juvenile court Decisions are Made on the Lowest Judicial Standard of Evidence

4. At best, CPS/juvenile court Decisions are Made on the Lowest Judicial Standard of Evidence, the 'Preponderance of the Evidence' Standard, i.e. 51% of the Evidence.

 The void of evidence and rigor in the CPS/juvenile court system leaves the decision making process wide open to the virtually unchecked influence of mistakes, bias, discrimination, prejudice, vengeance, hearsay, junk science, nonsense, and arbitrariness of all kinds. (The one exception to this is that a final termination of parental rights usually requires a 'clear and convincing' standard of evidence, which is still a much lower standard than the 'beyond a reasonable doubt' standard of the criminal system.)

When CPS seeks to establish the abuse, remove a child for up to 18 months, establish mandated service plans, determine visitation, etc., CPS must go into juvenile court to get these decisions authorized by the court. At first this may seem to provide the kind of oversight on CPS decisions that would make the process just, equitable, and safe from abuses. But read on.

First, the body of law governing the CPS/juvenile court system is so vague and open ended that virtually any and all decisions made by these bodies falls within the scope of the laws.

Second, at best, CPS and juvenile courts makes these decisions based on the 'preponderance of evidence' standard. This is the lowest judicial standard of evidence. The preponderance of the evidence standard is 51% of the evidence. It's sometimes called the 'more likely than not' standard. What this means is that all CPS needs to support a decision is evidence on their side, the CPS side, which is just a sliver more than the evidence on your side. This is a far cry from the 'beyond a reasonable doubt' standard criminal officials must establish before they can convict someone of a crime, even a misdemeanor.

Example of Preponderance of the Evidence: The mother tells CPS she didn't know that the stepfather was sexually molesting the daughter because the stepfather always did it while she (the mother) was watching television in another room. The CPS worker tells the court that the fact the mother was in the same house watching television while the stepfather molested the child is a good indication that the mother should have known what the stepfather was doing. Given the sloppiness of the 'preponderance of the evidence' standard, all the judge has to do is lean ever so slightly to the social worker's argument, and the judge can issue a finding that the mother 'knew or should have known', and then based on this finding grant the CPS petition to detain the child. Which is exactly what happened in this case.

Many lawyers themselves are so scornful of the flimsy evidence standard of the CPS system they call it "a crap shoot", or the "anything goes" standard. The problem for the mother goes beyond the fact that CPS doesn't need much evidence against her. It also means that whatever opinion a CPS worker may have of you, the worker can usually support that opinion in court simply by fishing through the extensive family details the worker has gathered and then selecting out the one or two tidbits that favor the opinion.

Add to this the huge initial mistake many women make of thinking of CPS as their advocate or friend or counselor. They pour their hearts out to the worker, giving the worker a whole ocean of intimate information in which to fish for evidence against them.

Yes, it's true that with all this latitude, the CPS system can actually do things right and put its full resources into helping the mother and child to get safely on their feet together. And indeed, there are plenty of cases where this is exactly what happens. But there are a number of things that makes the system tend toward abusive responses. One of these is the cardinal truth of any power. Unchecked power always tends towards abuses of that power. And the power of CPS is hugely unchecked. And worse yet, as is discussed later, it is exercised in secret.

A second thing that tends the system toward abusive and prejudicial responses is the class of the mothers themselves, and the heaping social prejudices that already prevail against them. The mothers who come to the attention of CPS are most often poor, or immigrant, or minority race, and themselves are the direct or secondary victims of family violence. The harsh realities of their lives are chaotic, frantic, and generally incomprehensible to people who don't live them. There is so much prejudice, stereotypes, ignorance, and blame against these women floating in society that the middle class social service system is primed from the start to blame these mothers, or at the very least, to believe it's the mothers that need to be fixed.

NOTE 1: Lessons from the Native American Community.Prior to the passage of the federal Indian Child Welfare Act of 1978, child welfare/juvenile court systems were removing up to 25% of the children from many Indian tribes, then terminating Indian parental rights, and adopting the children out to non-Indian families. Non-Indian social workers and judges were using rampant prejudicial and racist notions to justify these removals. In particular, CPS/juvenile courts were judging many traditional Indian child rearing practices to be abusive, in and of themselves. Native American peoples' were losing so many of their children to this process, many tribes labeled these child welfare policies as genocidal.

The Indian tribes crafted the Indian Child Welfare Act with the aim of stopping this systematic removal of their children. In so doing, the Indians keenly understood how the use of the 'preponderance of evidence' standard gave free reign to the prejudices, racism, and arbitrary factors that were being used to justify taking their children. They understood that the more oppressed a person is the more they need a high standard of evidence to protect them from governmental abuse. So, among other things, the Indian Child Welfare Act requires that CPS/juvenile courts must use the stricter 'clear and convincing' standard of evidence before the state can put an Indian child in temporary foster care, and must use the even stricter 'beyond a reasonable doubt' standard of evidence before the court can order termination of Indian parental rights. The act also requires that at any termination hearing, there must be expert witness testimony on Indian culture and child rearing.

We feel strongly that these same protections should be extended to all who come before CPS, since most all of these families are members of historically oppressed groups.