2/3/2012 11:56:00 AM 1 DRUG TEST:

Effect of positive test results: A parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship who has undergone drug testing may request an opportunity to challenge a positive test result. A positive test by itself does not constitute grounds for an adverse custody decision. In addition to enacting Family Code section 3041.5, AB 1108 requires the Judicial Council to study the implementation of the act and report to the Legislature no later than July 1, 2007. Four areas of inquiry are mandated by AB 1108:11 1. The number and percentage of custody cases in which drug or alcohol testing is ordered; 2. The rate of compliance with those orders, and the procedures that are followed if a parent fails to comply with an order; 3. The percentage of cases in which testing is ordered and the parent tests positive for the use of drugs or alcohol; and 4. The impact of a positive test result on the courts decision to grant or deny custody or visitation.
11. IF YOU FAIL

If you fail the test, raise hell. Failing the drug test has been known to make a quiet person go ballistic. You will be interviewed by a medical review official (MRO), who would try to find out why you tested positive. MRO's are NOT impartial. An MRO is an

employee of the lab, and is there for quality control. They are also there to protect the lab by coercing the court into thinking that the person who failed is a drug abuser. "Anything you say to an MRO can and will be used against you" (RDW). If you fight it, your lawyer "can subpoena the proficiency testing records of the laboratory for review" (anon1). These questions should be asked about the lab you are challenging:

1. How does the lab handle samples? 2 Are they NIDA/CAP certified? 3. Do they participate in appropriate proficiency testing? 4. Whay is their track records in the proficiency testing program? 5. Have they ever failed a proficiency test? 6. What are the qualifications of the technical staff performing the test? 7. What technologies do they use to screen and confirm?

"Conquering the Urine Tests" provides additional legal advice that will help you before taking a test, and if you fail a test.

CPS does not do the confirmation test. In my experience, they will not, even if you insist. They take the "flagged" positive as the end of the story. Why not? GC/MS costs more and they only need that "flagged" positive initial screen to hold it against you, or in the case of our caseworker, "refuse to discuss it further" and then threaten to remove your kids based on your "drug problem".

Of course, through all of this you need to assert that the drug test was either a false positive or most certainly not YOUR drug test because there is no way that could have been you, assert that you want the case dismissed yet you will consent to having an INDEPENDENT drug lab do a follicle test to confirm.

Still, as a last resort, since your kids were never harmed or neglected, offer that you'll agree to six months of home visits and periodic drug tests to confirm you are clean, that all is well, but the children are safe at home with you, always have been, always will be. If they balk at that, then consider offering that the kids go home with mom *UNTIL* you've had three consecutive clean tests, then you can move back in. Don't let them be the only ones who come up with the solutions/case plan. Negotiate with them. Say, "you're absolutely right that my kids need to be protected, so let them come home, you can check with them

and make sure everything is fine, but they were never at risk of being harmed, are NOT at risk now that we've stopped using altogether, an will NEVER be at risk because of illegal drug use ever again."

ATTTORNEY

* Ask your attorney directly what he or she is going to argue and ask for in court. Don't be shy about this. It is completely appropriate to the attorney/client relationship for you to be very specific in asking your attorney how and what they are going to argue on your behalf in court. It is also completely appropriate, in fact it is the core of the attorney/client relationship, that you tell your attorney in detail, how you want your attorney to represent you.

So speak up. Ask: "What evidence are you going to present in defense of the CPS accusation

"What are you going to do if the judge will not return custody to me?" "I want you to ask for increased visitation." "I want you to argue forcefully against CPS telling me to CO-counsel with my husband." "I want you to argue against this based on the history of domestic violence." etc.

ips to increase the chances your attorney will fight your case effectively:

* Know what attorneys like. Most attorneys like to go into court armed with solid evidence. They like to look good in court, to win smartly, and to do all of the foregoing with the minimal of effort. Even better, they like to do so with no effort at all. What this means for you is that if you can arm your attorney with solid evidence that smartly answers the CPS case against you, and if you can do so by making the most minimal demand on the attorney's time, you stand a good chance of getting your attorney to bat hard for you in court.

So....

* Be informed and be prepared. Know the written accusations against you. Know the exact purpose of the upcoming court hearing (i.e. what question is the upcoming hearing meant to resolve.) Then prepare yourself before you meet or communicate with your attorney,

including before any phone conversations with your attorney. Make a brief set of notes to yourself on the main questions you want to ask, and the main points you want to communicate. Try to put these points in as condensed a form as possible so you can refer to them and read them at a glance.

* In all your communications with your attorney, stick to the legal issue(s) at hand. This can be very difficult given the heart wrenching emotions of your situation. And it can be near unbearable to realize that your attorney isn't out there trying to move heaven and earth to make sure you don't lose your child to CPS. But it's very unlikely your attorney is going to be moved by your pain. If you vent your pain onto your attorney, it's much more likely you'll drive the attorney away rather than serving to draw the attorney into your cause.

Re: New here; CPS as a harassment tool by Eljay Fri Jan 20, 2012 10:17 am You lucky lady... false reporting is a felony in Texas!

From here: http://www.childwelfare.gov/systemwide/laws_policies/statutes/report.cfm "In Florida, Tennessee, and Texas, false reporting is a felony, while in..."

There was a former social worker who went to jail for false reporting. http://www.caller.com/news/2009/jun/02/ex-cps-worker-to-serve-90-days-in-jail/ She was in Corpus Christi. If you're in the same area, this will be easy-peasy for them.

Go here to find the state-specific statutes: http://www.childwelfare.gov/systemwide/laws_policies/state/

Filing for a State Administrative Hearing If you dont agree with how a CPS caseworker handles your case and cant get a helpful response from that persons supervisor, you might get results by filing for a state administrative hearing. Why file for an administrative hearing? 1. Regulations Is your CPS caseworker following the state regulations for child protective services caseworkers? Have YOU read those regulations? If you havent read the CPS regulations for your state, start there. See your local county law librarian if you need help finding the regulations. Make a note of every regulation that is

being violated in your case. Start a list of issues that could be brought up during an administrative hearing that will decide whether your CPS case is being handled right. 2. Court Orders Have you been to court? If so, you probably have a court order signed by a judge. Do you know what it says? Everything on that list of things you must do to regain custody of your child NEEDS to be done. Thats the service plan and in order to get your kids back, you MUST do everything in your power to complete the plan before the next court hearing. There are two things CPS caseworkers might do to mess that up for you. (a) They may take their time about making referrals for you to get their services. For example, your court order may say you must complete counseling. But your CPS caseworker wont even tell you the name of a counselor you must see. Sometimes caseworkers delay service referrals then go back to court saying you havent had enough of their services. Even though they are to blame for you not getting the referrals, the judge will probably agree with them. (b) Another thing they might do is to refer you to services that arent court ordered. For example, you might have a CPS caseworker forcing drug tests on you when they are not a part of the court-ordered service plan. 3. The Children Do you have a court order that allows freer visitation than your CPS caseworker will permit? Review your court order to see exactly what it says. For example, a court order might not require visitation to be supervised, but the CPS caseworker insists that it should be. In this scenario the CPS caseworker is violating the court order. Are you worried about injuries on your children in foster care, but find that the CPS caseworkers arent willing to move them to a safer environment? If you feel your CPS caseworker is violating regulations, or trying to delay court ordered services, or referring you to services that are not court ordered, or in any way violating the court order in regards to visitation or any other issue, you may have just cause for filing for an administrative hearing. How to file EVERY UNITED STATES AGENCY HAS AN ADMINISTRATIVE HEARING PROCESS FOR AGGRIEVED CLIENTS. THIS INCLUDES CPS AGENCIES. If you run into bureaucrats that say theres no internal review process like this, theyre wrong, and youre talking to the wrong person. Dont bother asking your CPS caseworker about whether or not you can file for a hearing. Many CPS caseworkers may not know about administrative hearings. Maybe theyve never

had a client file for one. In any case, you dont need to consult your adversary to file for an administrative hearing. (Also called a state hearing.) You can use the telephone to contact the hearings department of your state department of human services to file a request for a hearing. Another thing you can do is go to the front desk of the welfare office. Ask them for a hearing request form, and use it to file for a CPS administrative hearing. Welfare departments are part of social services, and they are used to getting hearing requests. Be sure to keep a photocopy of your hearing request form. What this does for you When you request an administrative hearing, an employee of the state department of human services known as an Administrative Law Judge (ALJ) will review your case. This means that injustices being done to you and your children on the county level will become known to the state department of human services, and all employee decisions will have to be reviewed. This is likely to frighten and upset your social services caseworker and the caseworkers supervisor. Is that what you want? Think that over; maybe you do and maybe you dont. The CPS caseworker will be called into a hearings room to meet with you and the ALJ. Most likely social services legal staff will have a position paper ready to give to you and the ALJ representing their side of the controversy. They might even have their lawyer there. BE PREPARED with your own set of legal documents representing and proving your side of the case. When you go to an administrative hearing you can appoint someone else to represent you. That other person could be an activist, an advocate, a lawyer, or anyone you feel is most competent. Or you can represent yourself. Look through your states social services administrative hearing laws or regulations. You have a right to request that these laws or regulations be sent to you in preparation for your hearing. Or, go to your local county law library for help finding them. Will your hearing help you? Most hearings Ive attended either to represent myself or another person involved with CPS did not have what I would consider a most positive outcome. Many of our requests were denied, but some were granted. Whether denied or granted, these issues were brought to the attention of the state and the CPS caseworkers had to have their actions reviewed. I believe that many requests werent granted because the ALJ didnt want to agree in a way that would give us grounds to sue the state. This is an INTERNAL agency hearing and you can expect some CYA (cover your a$$) type decisions.

Usually after the hearings, circumstances in the cases changed. This may have been because our hearing requests notified the CPS caseworkers that we were going to fight for our rights, not lay down and get walked on. Before you file for an administrative hearing, think about whether or not this could have an adverse effect on your case. You dont want to file just because youre angry with the system. If you have a genuine issue with the way your CPS case is handled, and the local social services personnel wont change their erroneous course of action, then the state administrative hearing might be a way to force action and state oversight of a CPS case. One thing your hearing isnt likely to do is to force your CPS caseworker to give your child back to you right away. This is not the same as going to a juvenile courtroom and getting a judge there to agree to have your child sent home. The state administrative hearing is only a review to see if a CPS caseworker is going by social services rules to handle your case fairly. Administrative Law Judges can and do force CPS caseworkers to handle cases differently. If for any reason your requests are not granted, do not be disappointed, but forge ahead by doing everything on your court-ordered service plan and by preparing a home to bring your children back to. The state administrative hearing does not affect your juvenile court hearing, which is where a judge can decide to send your children home. The state administrative hearing is an internal state review of an agencys work whereas the juvenile courtroom is an external review hearing presided over by county judges. Google: administrative hearing social services california (replace with your states name.)

2/3/2012 11:56:00 AM

2/3/2012 11:56:00 AM