STATE OF WISCONSIN
Department of Health and Family Services
Division of Children and Family Services

As you are aware, the federal 7^th Circuit Court of Appeals issued a decision in the case entitled Doe v. Heck. (Ref. John & Jane Doe, et. al. v. Carla Heck, et. al.; U.S. Court of Appeals Case No. 01-3648.) This decision relates to the authority of child protective services caseworkers to conduct child abuse and neglect assessments on private property. We will be issuing a more formal response to the decision in the near future, but I would like to provide you with our initial responses and suggested actions county agencies can take in the meantime.

At this point, no decision has been made regarding an appeal of this decision to the U.S. Supreme Court, although we are disinclined to do so at the moment. Even if the case is appealed, it would most likely be one to two years before a decision was rendered. As a result, we will have to deal with the decision of Court of Appeals for the foreseeable future.

We are and have been in the process of reviewing and potentially revising the CPS Investigation Standards for a number of reasons. The Court of Appeals decision will now be considered in determining what changes should be made to those standards. It is our expectation that revisions to the standards will be issued in early- to mid-2004. In the meantime, it is clear that some changes in our procedures need to be adapted.

I want to emphasize that I do not believe that this decision in any way changes the function of child protective services or seriously harms our ability to conduct child protective services assessments or to protect children. Rather, it points to a number of areas in our procedures where we will need to be more conscientious and thoughtful:

• Information from reporters. One of the issues in this case was that there was no indication that the child was at immediate risk of serious injury (i.e., that he was unsafe). This is certainly a difficult determination, but the facts of the situation form the basis for urgency of response and identify any exigency that may exist. As such, it is critical that county staff responsible for receiving reports of suspected abuse or neglect be fully trained in methods for obtaining the most comprehensive and accurate information from any reporter as possible. It is this initial information which determines whether a child is currently at risk or has been imminently threatened with serious injury.

(Note: The American Heritage Dictionary defines "exigent" as "Requiring immediate attention or remedy; urgent." The same dictionary defines "exigency' as "A situation demanding swift attention; a pressing state.")

• Urgency of response. This is an area where we have emphasized the need for thorough decision-making because of its connection to the presence of exigent circumstances. It is difficult to present the argument that an interview with the child must be conducted immediately when that argument is made 3, 14, or 30 days after receipt of the report.

• Collaboration with law enforcement. The court decision emphasized the need for consent (of the parent or the private property owner), a warrant or court order, or the presence of exigent circumstances in the context of the CPS agency's access to a child on private property. At the present time, there are no specific provisions under Ch. 48 for obtaining warrants or court orders in these situations. Such provisions do exist in other areas of the law that are more familiar to law enforcement officers. The presence of law enforcement can also lend credence to an assessment of the situation in certain circumstances. I want to be clear that I am not advocating the use of law enforcement authority when it is not necessary or is inappropriate. Rather, law enforcement generally has more experience in dealing with confrontational situations of the type involved here.

We are preparing to issue a statutorily mandated standard related to CPS collaboration with law enforcement. We are conducting one last review of that proposed standard to assure that this court decision is reflected in the standard.

• Contact with parents. In this particular case, the alleged abuse occurred at a private school in which the parents placed their child. Since school policy indicated that corporal punishment was used, the caseworkers determined that the parents were complicit in the alleged abuse because they were aware of the school policy. As such, they did not contact the parents prior to seeking to interview the child at the school. It is important to emphasize that unless the parent or parents are suspected as the maltreater or are directly involved in the alleged abuse (e.g., prostituting their child, placing the child with a known maltreater), the parent must be consulted prior to any attempt to interview their child.

• Supervisory consultation. We have emphasized for some time that caseworkers must consult with supervisors throughout the life of a case, especially at certain decision-making points. This court decision clearly indicates that supervisory consultation is critical in determining whether exigent circumstances exist, what the urgency of response should be, whether the parents should be contacted, whether law enforcement should be contacted, etc. Supervisors are in their positions because of the experience and skills they bring to the CPS system and are thus able to quickly review the facts and assist the caseworker in determining the conduct of the CPS assessment. This is an absolutely critical part of the process of performing child protective services. It is also critical that supervisors explain the nuances of the child protective services process, including the information contained in this memo, to caseworkers to assure uniformity of understanding.

• Understanding the definitions of abuse and neglect. We have a tendency to broaden what we consider abuse or neglect beyond the statutory definitions. This is a natural tendency, but we need to understand that we have to make distinctions between what is abuse and what is a situation that indicates that a family may need services. We still see many cases in which a bruise is substantiated as abuse when the statutory definition requires "severe or frequent" bruising. A bruise may indicate that the family needs services and should be "screened in" for purposes of an initial assessment, but it, in and of itself, does not meet the threshold for substantiation of abuse. This issue also underscores the usefulness of involving law enforcement in certain circumstances because the threshold for criminal offenses against a child under Ch. 948, Stats., is, in many cases, lower than the standard for child abuse under Ch. 48.

In summary, it is important to note that part of the reason for this court decision was that this case was not handled as well as it could have been. If a child is determined to be in immediate danger, then nothing in this court decision would preclude a CPS caseworker from conducting an interview on private property. Similarly, if the child is not in immediate danger, there is nothing to prevent the interview with the child on public property.

As noted previously, we will be providing additional information regarding the investigation standards and issues related to those standards. We have contacted two national resource centers (dealing with legal issues and child abuse and neglect issues) to assist us in reviewing the court decisions and our existing investigation standards. This will assist us in reshaping our standards and policies as necessary to be in compliance with the court decision and good practice standards.

The complete court decision in this case can be found at:

http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=01-3648.PDF

http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=01-3648A.PDF