#55 – The CPS Card: Whose Kids Are They Anyhow? ** December 17, 2014
Guest // Robert J. Krakow, Esq ** Host // Louise Kuo Habakus

So you think they’re your kids? Sure, you gave birth to them. You raise them, teach them your values, ferry them far and wide, and shower them with love and stuff.

Did you know your children can be taken away from you in a heartbeat?

It doesn’t take much and you might have no warning, before there’s a knock at the door from Child Protective Services (CPS).

Let’s back up for a moment. It’s understandable that our reflexive response is to support structured resources that protect children from abuse or neglect. We’ve read terrible stories of little ones tortured beyond imagination. We whisper a quiet prayer that, please, the next time, a curious neighbor or concerned teacher might find the courage to intervene. We’d like to imagine CPS caseworkers as a caped avengers of sorts, swooping in to save the day.

But what happens when we’re on the other side of the equation? Parents fall down the rabbit hole and find themselves in a true nightmare, waging an epic battle for their children. Join me and attorney Bob Krakow for an eye-opening and sobering discussion about the things that can and do happen to parents and what you need to know to protect your family:

• Is it true that allegations can be unsubstantiated and anonymous?
• What if the hospital says your child urgently requires a certain medical intervention and you disagree?
• What if you and your child’s doctor don’t see eye to eye about supplements, alternative treatments, or vaccination?
• Who are Mandated Reporters?
• What are the laws and limits?
• What rights do parents have?
• What are the top things that parents must know to protect their families?

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Louise:  Hey everyone.  I am Louise Kuo Habakus, your host on Fearless Parent Radio where we are talking about cutting edge and unconventional health, wellness, green living and parenting.  We provide evidence-based research, practical information and most importantly community.  Today’s show is about parental rights and child protective services – the things that can go wrong and the things that parents need to know to protect their families.  I’d like first to introduce today’s guest who is Bob Krakow.  Bob is an attorney in private practice in New York City.  He’s a litigator focusing on the trial of civil and criminal cases.  He was a prosecutor with the New York County District Attorney’s Office and served as Bureau Chief of the Special Narcotics Prosecution Division.  Bob cares deeply about the underdog.  He specializes in representing people who are injured by environmental toxins and vaccines.  He started his legal career with NYPIRG, the New York Public Interest Research Group and he’s on the board of and was board chair for seven years of Lifespire, Inc., an organization dedicated to advocacy for New Yorkers with developmental disabilities.  Bob founded and/or served on the boards of prominent vaccine safety and autism advocacy organizations including A-CHAMP and AA, Safe Minds, EBCALA, and my nonprofit, Center for Personal Rights.  He lives in New York City with his family and he’s the father of two children.  Welcome, Bob.

Bob:       Thank you Louise and thank you for that introduction.

Louise:  Absolutely! So here we are again, Bob, talking about another easy, uncontroversial topic, right?

Bob:       Right! Well this was an area that came to my attention sort of by accident.  It is not something in my legal practice.  I focused on criminal and civil litigation for many years, injury cases representing individuals.  But along the way, I started getting calls from parents who have children with developmental disabilities of various kinds and they were getting contacted by CPS, sometimes being summoned to court and this is not an area that I focused on. Family Court was something I had a peripheral experience with related to my other types of cases so I started looking at this a little more closely.  What I saw was, to me, troubling, and we will be discussing that, but that’s how I got involved in cases involving children’s protective services and also adult protective services, both as a lawyer representing people but also as a parent advising other parents, not even advising but discussing with other parents all over the country; the experiences and confrontations to some extent with these agencies.  So that’s sort of brief explanation of why I am involved with this.

Louise:  So let’s back up and just start out with what is CPS and what does is it actually do.

Bob:   CPS and in New York City it’s called ACS; in various places it has different names. It’s the agency charged with protecting children. So it’s an arm of the government that oversees how children are treated and how parents are handling the children, and other individuals, to watch out for their safety and to, if they’re in a dangerous place make it safer, monitoring and/or removing children in some circumstances from their parental or other settings and putting them, presumably, in a place that’s safer.  So you have agencies like this all over the country and this was a product of the social reform over the last century or so and now it’s been an entity within government that administers these kinds programs.

Louise:  And it’s administered on the state level; is that right?

Bob:       State level.  Right, it’s all state agencies.  There is some federal involvement in this because there are federal laws that govern some of this but primarily it’s state law and state agencies that administer the program.

Louise:  So we read the press.  We hear these horrible stories; they get a tremendous amount of coverage and every parent who reads these stories we sort of whisper a quiet prayer, that please, the next time, let a curious neighbor or a concerned teacher or somebody find the courage to intervene. We like to imagine that these social workers, these case workers are sort of like caped avengers who could swoop in to save the day.  I’m sure that was the intention behind why these came about but could you briefly describe a textbook case for when CPS works properly? So how might this happen?

Bob:  Let me preface my answer by saying that the overall purpose and intention, as you mentioned, of children’s agencies, children’s protective agencies, is to protect children and the intent is good and in many times it’s absolutely necessary especially in the most egregious cases because as we all know there are many cases where children are abused, mistreated, neglected and so on. And not just medically but educationally, not just physical abuse but all kinds of abuse. So there is a need for someone to monitor this and step in if necessary.  so I don’t know if it’s a textbook case but a case that sticks out in my mind in the New York City was probably 25 years ago, there was a child who was a young girl horribly abused – a notorious case in New York City – and it turned out that, she eventually died, and one of the focuses of the investigation was that ACS in NYC did not take action when it should have.  That’s one of the issues because the agency is very overburdened. there too many cases; there aren’t enough caseworkers.  But there are cases like that where a child was abused – tied to a kitchen chair; not fed properly; not attending school properly and that’s one of the issues that comes up with schools and we’ll get into that, and that’s a case were CPS should step in.  The child is in danger, step in, take the child out of that situation unless there is a way for if it’s one parent and it’s the other parent that’s the problem and put the child in a safe situation or it’s foster care and that’s a whole separate set of problems. So there’s no question that there are situations where it’s in the interest of children in protecting children, to have these agencies, to have trained caseworkers. There is no question in my mind that a majority of caseworkers and supervisors have the best intentions; many are trained well but sometimes there are lapses in training, lapses in oversight, lapses in bureaucracy and children fall through the cracks and then there is a whole separate area which involves what is abuse and who has to report it and what’s the appropriate response of an agency. And are other institutions like hospitals like medical doctors, teachers, school administrators abusing that system for other purposes other than what’s in the best interest of the child?  And the problem here is who decides that and what criteria are they using? Are they looking at everything objectively or is there a separate interest, a separate agenda that’s governing that to promote other ends and that is where you get into some problems. Just to underline this. These agencies have tremendous power; they can remove your child from your home, take custody away from you and it could be permanent and the question is whether that’s justified  so going back to your textbook situation there are situations where it’s justified.  It’s rare; it’s hard to know where the dividing line is between the justified removal of a child from the parental home is appropriate and where it’s something else that’s the problem and not the parenting. Sso I don’t know if I gave you the textbook case but that’s the that’s the crux of the problem.

Louise:  So you know what I’m hearing and this is not my expertise either but some of the research that I’ve been doing at in seeing numbers thrown around as trying to get source said the data and could not find great source data but what I’m hearing is that at the very large number of cases actually fall into this you know gray or concerning area. I saw that about 1% of child removal cases are true abuse; about 10% involve abusive substances – drug abuse on the part of parents or guardians and that something on the order of 80% there is big question marks around? So let’s dig into this.  Can you give us an example of a story that’s been in the press where big question marks are raised?

Bob:       I think the case that drew the most attention over the last couple of years was a case in Boston and it’s well-known, it was well-publicized, very well covered from early on by The Boston Globe called the Pelletier case.  This is a family from Connecticut that has a child with a diagnosis of what once was considered, and probably is considered by many people, to be a rare disease but may not be so rare called mitochondrial disorder. And this is an example of where you get into these gray areas with medical issues and medical issues aren’t the only area but we will focus on that.  There is a controversy in the medical field over the diagnosis of mitochondrial disorder. First of all some medical people don’t consider that it’s real.   Secondly it’s difficult to diagnose.  There are genetic causes but those are not often detected but now practitioners understand that there are other causes that are not either genetic or are not defined in the research.  So the question becomes is the child properly diagnosed?  The Pelletier case is a case where the child had been diagnosed by a very well regarded physician at a major hospital in Boston, at Tufts.  A very prominent physician, a very well regarded, well credentialed place.  She was being monitored and doing relatively well. She was a teenager, maybe fourteen years old or even younger at the time and she had some sort of infection and she had involvement of gastrointestinal disorder and that’s something that comes up repeatedly in these kinds of situations.  Her gastroenterologist had moved to another hospital, Children’s Hospital which is associated with Harvard University also regarded as a premier medical institution and she went there to I believe the emergency room to seek treatment and that’s where her gastroenterologist practiced but she was not seen initially by the gastroenterologist.  She was seen by another doctor in the emergency room who apparently disagreed with the diagnosis and felt that there was a psychogenic somatoform component and that’s something that comes up time and time again when symptoms are not well defined medically, they are not easily, objectively measured or detected.  This doctor felt that there were no gastrointestinal problems; this was not a mitochondrial disorder but it was a somatoform disorder. It was psychogenic.  It was something to do with the child’s mental state and presumably something to do with her home environment.  So the hospital made the decision (or doctors at the hospital) that the medical intervention prescribed by the mitochondrial diagnostic and treating experts at Tufts should be discontinued. The child was admitted to the hospital and effectively the parents were excluded from her care and their decisions were not regarded.  This eventually led to the child’s removal, she was detained essentially in the hospital, and then eventually for more than a year removed from the home.  The case has a somewhat happy ending because eventually the parents fought this and it was a very public battle and regained custody.  I understand that she is home now.  This is one of the most egregious examples of not just CPS but a hospital making a decision, essentially disagreeing with a diagnosis of another well credentialed expert in the field and deciding that a child should be removed from the home.  The problem is that the scenario when it occurred was not new and this is how I became aware of this type of situation because I’ve been contacted many times because of the work I do by representing children who are claiming injuries by toxins or vaccines or have other legal issues involving poorly medically defined disorders like autism or other developmental disorders.  Families with children like that had been contacting me because they had been charged essentially with petitions alleging a medical abuse.

Louise:  So it’s very similar to what happened to Justina Pelletier.

Bob:  Very similar except in the cases that I know about and that I actually represented individuals I was able to get involved early and that’s a key here.  People don’t want to be involved with lawyers and I respect that and if you have to be involved with a lawyer then you have a problem,  a legal problem. This is one of those situations where it’s very important as early as possible, when this situation appears as CPS or governmental agency or school making allegations of abuse or neglect to have a lawyer who’s familiar, trained and committed to helping families get involved early because a lawyer can affect the process.  If there’s no third party involved, no advocate for families and sometimes parents can be good advocates for themselves but the large majority of case, for various reasons they can’t be simply because it’s too emotional, too close to home to be a good advocate.  You need someone to step in and there are procedural protections in place and there are certain things you can do to defend against these cases early and nip it in the bud before it gets to the CPS caseworker, before the CPS caseworker makes a recommendation to the agency whether to file charges in court and file for removal proceedings.

Louise:  We obviously want to get into this Bob. I just want to close  the Pelletier story.  It took over a year.  Her parents did not have her for what, 15 months?  It was an extraordinarily long period of time.

Bob:       It was a shocking example of things gone wrong.  In fact, there is an organization called MitoAction centered in Boston but it’s a national organization, that focused on this and has now developed an advocacy program and I think what we can do is provide that information on your website.  I‘ve been looking at their material which is at mitoaction.org and it provides some excellent pointers as to how to navigate the system.  So we can provide that information.

Louise:  Good.  So presumably what happened was that this ER doc contacted hospital administration and they made a decision to contact CPS.  Is that right?

Bob:       More or less, that’s right.  The timeline may not have been exactly that but yes.

Louise:  So it starts with somebody reporting a family, somebody reporting a situation. What happens when that occurs?  CPS is obligated to do some things, right?

Bob:       Well first of all you focused on one of the major problems. The law has evolved so that certain individuals who have contact with children — teachers, social workers, and others, including people connected with social service agencies and now in New York even the members of the boards of directors of organizations that provide services to the developmentally disabled are called mandated reporters.  That means if they observe something which may be abuse, it’s their obligation to report it and failure to do so is actually a violation of the rules and the law.   So what that triggers is in some cases a hyper-vigilance where a social worker in a school or a teacher in a school or a administrator in the special education program in the school sees something that mandates a report and they will report it. For example, I’ll give you a trivial example which wasn’t so trivial at the time, a family had a therapist coming to the home to provide therapy to a preschool child.  It was early intervention and apparently this therapist did not like… maybe the supplements that the parent was giving, some point of contention controversy, maybe the house wasn’t perfect, maybe, whatever it was.  And that therapist called CPS and CPS came in and did an entire investigation and entered the home, looked around and filed a complaint alleging that there were unprescribed medications being given, etc.  There were certain things… that were highly trivial.  This turned out okay because really there was nothing there.  But even that intervention can be traumatic for some parents or the home environment and other situations, often with special education there are battles going on between parents and the special education providers as to what the appropriate interventions are,  what the appropriate accommodations are for a child in a special education program and often it’s very contentious.  Unfortunately in some circumstances we have seen school administrators or teachers, when a parent becomes what they would consider difficult – a parent just fighting for their child, report parents to CPS for educational neglect or if they see it and it could be any small thing and there is a specific situation where I can give you an illustration from my experience, alleged medical neglect.  So you see the way that certain institutions that are very self protective, individuals that are mandated reporters who are self protective and they feel they have to report will report a situation, put it in the hands of CPS which will trigger an investigation, which will trigger caseworker going to a home, starting to ask questions, knocking on the door without any warning and saying I’m from Children’s Protective Services and we have a few questions for you.  This is before a petition is filed.  It’s a precarious time;  it’s a time a family can do something, there are rights and unfortunately, many of these cases are not well-founded.

Louise:  I know people are going to want to get into that.  We want to know what our rights are but just to summarize then.  Mandated reporters are obligated and will self protect to cover themselves, right? So that they may initiate quite vigorously but anyone can report, right?  Your neighbor may be watching you and they can do it anonymously. Are people who falsely report abuse…let’s say these turn out to be unfounded? This can be abused. This can be used as a way to get back at someone. Is there any follow-up so that people are discouraged from doing this…

Bob:       Right. Well, it’s a crime and I don’t even know about a case where someone in that context has been prosecuted or disciplined or even challenged because of a false report. It’s very difficult to prosecute because first of all, it’s anonymous.  So if you get families subject to an anonymous report of child neglect or abuse you have to go through the process and even if in most cases you are going to be absolved of any wrongdoing, your child is not going to be taken from the home, the reporter is never disclosed.  So you don’t even who it is.

Louise:    But you can’t find out after you’ve been absolved? Can you go back and say I just spent x  number of dollars and all this time…

Bob:       You can but most families are just happy to get out of the system.  They don’t want the expense or spending time and expense of having an investigation done.  The authorities are not going to aggressively pursue that unless it was so egregious that they can’t or it’s publicized.  There is always a gray area whether something is true or not and that how these cases are resolved.  So if a case is not pursued, it will be determined that it’s unfounded and that’s where it stays.  You are not really absolved. It’s just that the authorities cannot proceed in that situation.  It’s a gray area. It’s not like you are vindicated.  There is still a record kept in the children’s services agencies and it stays there.  There is a way to get that expunged but that takes additional legal work, which is an additional expense.  It’s not easy to do; there certain standards.  So there is a gray area that remains in place no matter what and that allows false reports to be made with impunity.  That’s a problem.

Louise:  Yep, it sure is.  You can get access to your report, right?

Bob:       Right. You can get access to the documents in the report but the relator, the person who called it in, is not to be disclosed to you except in extraordinary circumstances where you have some evidence that there was a false report so that a separate criminal or actionable action there that you can move on.

Louise:  Does CPS really just show up and knock on your door?

Bob:       They can and that’s typically what they do.  There will be a complaint to the agency, a file will be opened, a case will be opened and a caseworker will be sent out to the family’s home to investigate and they will show up, they won’t tell you in advance. The family, mom would be confronted by a knock on the door saying, “We’re from CPS and we want to talk you.”  Now the question is what do you do?

Louise:  Most of the people listening to this show are concerned about cases where in our heart of hearts, it’s unfounded.  We know that perhaps we’re involved in some discussions that could involve school, it could involve a neighbor, we might have ideas about where this could have originated but there is no abuse or neglect going on.  What does the parent do? Let’s say mom is at home and CPS is saying we just want to come in and ask you a few questions.

Bob:       I think the way you formed the question was good because most people will think I’ve done nothing wrong, I’ve nothing to hide.  The problem is the family – the mother, the father – they are not the judges. They’re not the administrators at CPS who decide whether something is wrong.  It’s up to CPS administratively whether to bring charges, it’s up to a judge to decide whether there’s been abuse and what a family may think is fine may not be consistent with the view of the agency.  So the answer is you shouldn’t act as if you did nothing wrong, so please come in and take a look around, no problem. You could do that and that could work out fine.  Some cases maybe in retrospect that would have been the best policy but you can assume that if there’s been a complaint, it’s not a false complaint, it may be a misguided complaint, it may be exaggerated complaint. So I can give an example from one of my cases where a family had a very seriously developmentally disabled child, very unclear what was wrong, labels were given, the labels don’t even matter but that’s part of the problem, the family was seeking answers to that question.  Going to many doctors and that came to the attention of the school and the school reported it to CPS and then they got the knock on the door.  That family believed and believes to this day and a judge eventually agreed that they did nothing wrong.  What were they going to do when they got the knock on the door?  That’s the question. My advice is — preface it by saying, always be polite, always be friendly — but you have rights. You have a right not to allow a caseworker in.  You have a right not to speak to caseworker.  The problem with that is that if a caseworker believes there is imminent abuse or continuing abuse, there are exigent circumstances, then they can go get a warrant.  If they don’t have a warrant, which they usually don’t, it’s usually just an initial inquiry, they don’t have a right to come into the home but you don’t know that and the best thing to do, the objective is get the case worker to understand, “Hey, we understand you have to do your job and I certainly want to cooperate but I think we should do this at your office.  I’ll come down so you can interview me as much as you want.  Let’s set up an appointment.”  Usually that won’t work with a parent because the caseworker doesn’t want to have to do that.  The caseworker wants to get to the bottom of it now.  The caseworker wants to get in the home, wants to question the parents; wants to see the children.

Louise:  But as you said, people have rights.  The Fourth Amendment protects against people coming into your home without a court order or warrant, right?

Bob:       That’s right except when there’s evidence of a crime or evidence of abuse or neglect that’s eminent and established.

Louise:  So if that’s happening, chances are they would have the police with them and they would force their way in.

Bob:       In that circumstance, yeah, that would escalate and they would have a warrant and they would just go in take the child.

Louise:  They’re knocking  and they want to know can we have a little chat.  I like your suggestion which is to set up an appointment. Obviously the caseworker persists and pushes and says this can be handled quickly, I just need to ask you a few questions. It will become clear whether they have a warrant or not, right?

Bob:       Well maybe or maybe not because the caseworker does not have to tell you exactly what authority they have.  They should.  So they could come there and just come in if they have a warrant and then you don’t have any leeway there.

Louise:  But nobody can come in unless you let them in.

Bob:       If they don’t have a warrant, you don’t have to let them in. They don’t have a right to break into your home, they don’t have a right to look at your children or question your children.

Louise:  I’m hearing some hesitation in your voice because I know that one of the things you don’t want to do is to prematurely escalate something.  Are you saying that you think in some cases it does make sense for people to be allowed to come into your home without a warrant?

Bob:       No.

Louise:  Ok, I want to make that clear.

Bob:       This is the problem.  If you refuse to allow a caseworker in your home, if you refuse to answer questions, the caseworker will likely escalate the case at that point and you’re sort of playing a game of your daring them to take further action.  If their belief rightly or wrongly is that the case is serious and they have to take action, then they will take action right then and there.  In most cases, they will have to back off and especially if you have a lawyer involved and you can go the route where you go to their agency, you are interviewed, you provide the information that shows that there’s no problem.  Often you won’t get a knock on the door first. You might get a contact from CPS or so on and there are things you can do to prepare for that.  There are things you can do after the initial contact if you have the interview and the primary thing is, if it’s a medical abuse case, getting the support of your pediatrician, your primary care physician because that will resolve the case.  In this initial encounter, that’s where the gray area is, that’s where the danger is because if you do speak to a caseworker or you do allow caseworker in and there’s no third-party to watch them.  You are not recording it and you can record, there is no proscription in New York, some states may limit it, you can record, you can videotape.  Then it’s a matter whatever the caseworker says.  So the caseworker sees something which is benign and says no, that’s evidence of abuse.  So the caseworker is in a mode where they are evidence gathering, that’s what they’re doing.  They are trying to build a case or decide whether or not they have a case but often their biases in favor of building case.  So that’s the risk if you allow a caseworker in, you allow them to see your children, you allow them to question your children, you’re giving valuable evidence. In the case of medical abuse were it’s a gray area and there is a difference of opinion as to what constitutes medical abuse, so families going to various specialists to try to figure out what’s wrong with their child and the agency feels that that’s medical abuse because it’s what they call Factitious Disorder (or Munchausen’s) by Proxy.  There’s no real problem, the mother’s making it up to get attention.  This comes up all the time and it’s not valid that this disorder even exists although it is on the books and in the DSM diagnostic statistical manual, that’s where you have a grey area.  The best advice would be don’t, if you can, don’t speak to them, don’t allow them in but you have to understand that if you do that, it triggers certain biases on the part of the caseworker that you are hiding something even if you are not and they may escalate this depending on the nature of the report that they have.  They are not going to tell you anything but the basics.  They do have to inform you the basic report but you don’t really know what the underlying allegations are, the full allegations are and how they assess the situation.

Louise:  So could the meeting end benignly, if you let them in with no warrant, could the meeting end with them taking your child away? Could the caseworker call the police?

Bob:       Could but it’s rare.  One thing you can do, first call a lawyer.  Call a trusted family member.  Call a friend.  You want a third party there to observe what is going on.  Rare cases, there is authority to remove the child.  If you obstruct the agent, if you’re rude, if you start abusing the caseworker, if you start screaming or whatever, that is going to escalate the situation right there.  So the best thing to do as I said at the beginning is be extremely polite.  Bend over backwards to be polite but that doesn’t mean you let them in.   The idea is to de-escalate.

Louise:  But this is not a situation where calmness prevails.  This is an extremely emotional and tense kind of conversation so it’s difficult to access the poise and wherewithal, right? You can understand that parents would be in deep, deep distress.

Bob:       Most parents are going to be extremely upset by this and because of that react in ways that are not going to be helpful.  Not their fault but that’s what happens.

Louise:  So we’re talking about disagreements regarding medical issues and we know that children are… chronic illness, developmental disorders, autoimmune disease. There’s a lot of big questions, grey areas, parents trying to figure out how best to help their children. One of the most important things that you and I talked about is the role of the doctor. The fact that this person is so critically important in helping to prevent an absolute nightmare from occurring.  So whether you are in the hospital and the hospital says “Mr. Krakow, we need to immediately pursue this surgery, this intervention, this medication” and you’re saying no, I don’t want that.  In the case of Justina Pelletier you have the hospital with another doctor coming in and saying yeah, you need to do this.  So talk about the role of the doctor.

Bob:       I want to be very careful because it’s easy to in this situation demonize doctors and I think that would be wrong.  I think most doctors have the interests of their patients first and foremost.  However, there are situations where a medical doctor wants to maintain a position of control over the medical care notwithstanding parents ultimately have the right to make medical decisions.  This is where the conflict arises.  So in the Pelletier case, a doctor decided that this was not mitochondrial disease, this was not a physiological disorder, this is not a physiological gastrointestinal problem. This was psychological.  This was psychogenic, somatoform, and so on. The doctor ultimately has a lot of power and authority. Often these situations are not like the Pelletier situation where this went to the hospital, there was a quick decision and so on, a horrible conflict.  It has more to do when parents who want answers for a child who has a difficult diagnosis that’s not medically-based, challenges the doctor or is too active in trying to suggest what might be wrong and providing background research and the doctor gets alarmed and feels his authority is being undermined and the child is not getting the appropriate care.  In that situation, a doctor could report it.  It escalates in the situation you’re talking about and some of the well-publicized situations where there has been litigation, the doctor recommends certain cancer therapy, say chemo and the family says no and there’s litigation over that.  It’s not an area I want to get into the technical aspects, it’s not an area I practice in, however, how do you resolve it and how do you avoid the problems?

Louise:  I think that’s the critical question. One of the things I say to parents all of the time is that you should not choose your doctors solely on the basis of who is in network. When you’re in distress, when you’re in the hospital, when you’re in a situation that requires urgent, exigent care that is not the time to be discovering that you’re not philosophically aligned with your child’s medical practitioner.

Bob:       This comes up because in the situation where CPS does get involved, if you have good rapport with your pediatrician, for whatever the situation is, even if the pediatrician is not treating your child for whatever diagnosis you have, mitochondrial disorder or any other a developmental disorder, if the pediatrician is in your corner and believes you’re a responsible parent and essentially can vouch for you or say that you’re responsible and do everything you’re supposed to do, that will weigh heavily in the parents’ favor and CPS will back off.  This is what I’ve seen time and again.  That’s also true when you get to court, your doctor’s opinion and the extent to which your doctor is willing to back you up in your situation as a parent will ultimately be the deciding factor as to whether a court, a judge decides action is necessary, the most drastic being removal or other monitoring. So having rapport and choosing your doctor carefully is paramount.

Louise:  A lot of parents will share with me that they fight with their children’s doctors. They dread going into the office, they usually have disagreements about things like vaccines, the use of supplements or alternative treatments, dietary interventions and I believe that it is really important that parents understand that it does not behoove them to keep a doctor with whom they disagree solely because they happen to have a low co-pay and be geographically proximate.  This is something that is pretty important for variety of reasons and not just in the event CPS is knocking on the door.  That kind of experience is not when you want to discover that your doctor is not going to back you up.

Bob:       That’s right.  If you can’t because of limitations of insurance or financial limitations you can’t choose who your doctor is, I think I need to start off by saying the most important thing – don’t fight with your doctor. The doctor will assert his authority and also identify a parent as a problem and that will not go over well if you get into a more serious problem.  So the point is to get the basics and stay away. Avoid conflict with your doctor; it is not going to work out well.

Louise:  So let’s summarize this for parents.  What would your top pieces of advice that you would give be?  First is that you have to take this deadly seriously, right?  When CPS is involved, this is not something that can be taken lightly.

Bob:       When CPS is involved, that’s an emergency and you need expert advice from somebody, primarily if CPS is actually engaged, a lawyer.  A lawyer who knows what they are the doing.  A lawyer who is sympathetic, is willing and committed to fight for families in this situation.  I should add, there are many lawyers who do that but there are some lawyers who are not familiar with this and sort of are too deferential to authority in this situation and that’s not good either.  So you need someone who is a professional, knows the dynamics here and willing to stick up for family and put into play those factors that are going to help the family, especially the doctors who will support the family.   So deadly serious, take it very seriously, you can’t take it lightly – you could lose your children.

Louise:  You need a lawyer who is qualified to practice in your state. So in the network of sharing information, it needs to drill down to the state level.  You have the right to get details.  They are required to tell you about the allegations?

Bob:       They are required to provide you with the basics of the petition or the complaint if there is no petition yet that spells out the details.  It will often have the wording that was given by the mandated reporter or whoever else reported it as to what is going on.   That will give you a big clue as to what is going on here and who probably reported this and what situation prompted it.  You’re entitled to that information and then you’re entitled to due process and unless it’s an exigent circumstance, you’re going to be able to either on your own or more often with someone who knows the system, be able to steer it in a way that will take it away from the home to another setting where you have an opportunity to bring your evidence to bear, primarily the doctors you’re involved with, anybody else involved in educational neglect situation, what you’re doing educationally, sometimes the people are homeschooling so CPS gets called in because of educational neglect.  So you need to de-escalate and steer it in a direction where you can be able to make your case to explain what’s going on without the prying eyes of the caseworker who may misinterpret what’s going on in their evidence gathering process.

Louise:  A social worker is not the legal system.  This is not innocent until proven guilty, right?  This is not somebody who’s bent on telling you what your rights are.

Bob:       No, the interest of the child is the dominant consideration.  So if there’s information that shows a child is in imminent danger, they have a right to the child away without any trial or hearing even and then the hearing will come later.  So that’s rare but it can happen and if the situation escalates where a parent gets upset and, in the view of CPS, obstructs a relatively benign situation, everyone is serious but benign in the sense that the child is not going to be removed, it could escalate rapidly.  Caseworkers do have the authority to escalate the cases.

Louise:  So Bob, unfortunately we are coming to the end of our show and I have so many other things that I wanted to ask you about but what I would like to close with is, you are an important resource to many parents and in our broader community of parents who are pursuing active, proactive, holistic alternatives and sometimes at times unconventional choices in parenting and in health and encounter bumps along the way, I was wondering if you could tell our listeners a bit about your practice – the kinds of clients you have, the kinds of expertise you have.

Bob:       Well, as you mentioned in the beginning, I started out working for a public interest organization.  Then I spent almost a decade in the District Attorney’s Office primarily prosecuting drug cases but also all kinds of other cases.  Then I established my practice about 25 years ago on criminal and civil litigation.  Today I handle a variety of cases but a lot of my practice is devoted to representing individuals who were injured by vaccines and that’s an area that’s controversial and it leads to some of these problems which is why I got alerted by families who have situations.  I also represent families in personal injury cases of various kinds, medical malpractice.  I just want to add something very important we didn’t touch on is that what you do with your child is your business as long as it’s legal and safe.  I see a lot of parents in public forums on the internet and Facebook talking about things which is really nobody’s business and what they don’t understand is that that information is accessible and out of context it could look very bad.  So I think the advice is to be very careful what you say and who you say it to.  Something that is very benign to a parent, giving supplements of certain kinds can be regarded as very dangerous.  For instance the gluten-free diet is regarded by some doctors as dangerous because supposedly it deprives a child of certain nutrients and minerals and that in certain contexts can be regarded or treated as abuse.  I just think parents have to be very careful and almost always they’re well-intentioned but I just wanted to add that as some helpful advice.  Be careful as to what you’re saying and where you are saying it.

Louise:    That’s right.  You don’t want to be on the defensive needing to explain things that could be misconstrued or misinterpreted.

Bob:       Exactly. I just wanted to add that note before we concluded.

Louise:  Thank you, thank you.  Bob, I so appreciate you coming on to talk about this and I know that this show will generate a lot more questions. I’m hoping there will be a lot of comments.  I encourage people to share your comments and stories.  You don’t have to use your last name and we encourage a lot of conversation and dialogue.

Bob:       One more thing.  Go to that mitalaction.org on their homepage, it will lead you to their advocacy page that provides a lot of information on this.  I’m not involved with that organization directly but it’s a terrific organization and answers a lot of the questions that we have been talking about today.

Louise:  I think when the stakes are high like this, and the process seems very mysterious, there is a lot of opportunity for fear and mythology to grow, right?  It’s sort of like mushrooms in the dark, they can proliferate so it’s useful to shine a light. I really applaud organizations working on behalf of parents to try to bring some of these issues to light. Bob, thank you for everything that you do to help parents understand the laws and our rights.

Bob:       Thanks Louise.

Louise:  Loved having you on the show Bob.  To our wonderful audience, we’re listening to you so please let us know what you think.  Tune in next week, we have Dr. Chandler Mars who will be discussing noninvasive treatments for women with endometriosis. The archives of Fearless Parent Radio are available on PRN.FM, on our website FearlessParent.org and on iTunes and podbean.  This is Louise Kuo Habakus signing off.  Be fearless everyone.

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Robert J. Krakow, Esq is an attorney in private practice in New York City focusing on the trial of civil and criminal cases, and specializes in the representation of persons injured by exposure to environmental toxins and vaccines. Bob started his legal career with NYPIRG. He was a prosecutor with the New York County District Attorney’s office and served as Bureau Chief of the special narcotics prosecution division. Bob is committed to working for individuals with disabilities. He is on the board of Lifespire, Inc. and was Board Chair for 7 years. He founded and/or serves/served on the boards of prominent autism and vaccine safety advocacy organizations including EBCALA, Center for Personal Rights, A-CHAMP, National Autism Association, and SafeMinds. He lives in NYC with his wife and their two children.

Louise Kuo Habakus is Executive Director of Fearless Parent, lead host and producer of Fearless Parent Radio, and mom of two. She is a published author, runs the non-profit Center for Personal Rights, lectures widely, and has appeared in numerous media outlets, including ABC World News Tonight, Fox & Friends, and The New York Times. Louise was a Bain consultant and a C-level executive in the financial services industry. She holds two degrees from Stanford University.