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Ask Carolyn: Can DSS Use a Dropped 50B As Evidence of Child Abuse?

Hi, Ms. Carolyn

My wife and I need some advice. In 2009, we had to see a judge in a matter of a 50B taken out by my stepson’s father based upon alleged child abuse. The 50B judge said that we would revisit the 50B issue after DSS finished their investigation, but it was never resolved. The father of my stepson let him stay with us after it happened.  We waited a month, and the father’s lawyer withdrew. The Judge dropped the 50B case due to the father not moving forward with the 50B. I checked a box on a DSS form saying that I was not admitting any guilt with DSS.  DSS never did an investigation. DSS apparently found abuse in the home because a year before (2008) my wife got mad, and took out a 50B on me. My wife then dropped the 50B. Then, my stepson’s father got a hold of the 50B my wife filed and dropped and DSS went with the decision based on my wife’s 50B.  Can DSS base a case on my wife’s dropped 50B?

 

Carolyn Answers….

The short answer is that it is unlikely the Department of Social Services (DSS) is relying on an old, dropped 50B (domestic violence action) without other evidence of alleged child abuse.  DSS does keep a cumulative file on a family once a complaint is received, but each new allegation is independently investigated.  Most often, DSS will talk with the alleged child victim at school or other location without any caregiver present.

Unfortunately, you seem to be the victim of a very convoluted and vindictive set of facts involving two distinct and separate legal processes:  1) 50B which is domestic violence in the court system, and 2) a Child Protective Services investigation by DSS (Department of Social Services).

Your fact pattern, as I understand it from your letter,  describes three factual events in the following chronological order:  1) your wife got mad and brought a 50B (domestic violence action) which was dropped by your wife; 2) your wife has a minor child by a former relationship, and subsequently in 2009, the father of the minor child brought a 50B against you; in addition there was a social services (DSS) investigation regarding child abuse of the minor child;  interestingly enough, the child came to live with you;  3)  finally, and perhaps more currently, a child protective services investigation by Department of Social Services, related to the minor child, may still be pending.  This seems to be your main concern, and you wonder how the historic facts are affecting your current situation.

  1. The first 50B seems to be an abuse of the 50B system; 50Bs are not for mere marital arguments, if that is the nature of your wife’s 50B. Getting “mad” is not a legal ground for a 50B.  Taking out a 50B should not be done lightly, and should only be done in serious matters.  Your wife did the right thing in dropping this first 50B.
  2. While 50Bs (domestic violence court actions) are certainly necessary, they can be abused and frequently used for “one-ups-man-ship” in a custody battle. Your 2009 fact pattern suggests that perhaps custody was a motivating factor in the first 50B and the first Department of Social Services investigation, since the minor child came to live with you.  It is hard to say from the fact pattern what happened to the second 50B, but 50Bs are only good for one year unless they are renewed.  Further, it is hard to say if the second 50B was granted and expired, or never granted and simply died a procedural death at the courthouse, which could be related to the withdrawal of the attorney.  I would suggest you make a trip to the Guilford County Courthouse and get a copy of that 50B file and see what happened to it.  While you are at the Clerk of Court, you should also examine the first 50B court file to make sure that the dismissal by your wife is correctly stated in the court file. These are public records and the Clerk of Court must show you the court files on these 50Bs and give you a copy for a small copy charge.  Armed with this information, you can see what actually happened with the first and second 50B.  You may also want to show the two dismissals, if that is what happened, to DSS and make sure DSS has a copy for its file of the dismissals.  Additionally, you also want to make sure you get a copy of the signed document from DSS.  I invite you to write again if this gives you more factual information.
  3. More importantly, let’s discuss the current DSS investigation. First, you need to know that anyone can pick up the phone and make a confidential report to DSS of the alleged abuse or neglect of a minor child.  Certain persons, such as medical doctors and psychologists, are ethically obligated to make a report of suspected child abuse or neglect.
    • It is unlikely that DSS will rely on data as old as 2009 in establishing abuse or neglect in a 2013 case.  DSS likely has a cumulative file on your family and the particular minor child in question. However, DSS is likely investigating the current allegation of abuse independently of anything that has happened in the past.  While obviously, the old files may provide hints of tendencies toward child abuse, DSS is going to rely more on current and independent evidence. DSS will interview the minor child, probably at school, with no notice to anyone to get the minor child’s statement free of influence of any adult that might be involved.  Further, DSS will evaluate eye witness accounts of others—such as siblings, other adults, and neighbors.  DSS will evaluate medical records, and other evidence of physical harm (eg bruises), such as photographs.  DSS, on occasion, even has studies done on families by mental health professionals.

Your biggest problem is properly presenting your position regarding the facts of the current DSS investigation, not the old files from 2009. If the current allegations to DSS are totally false, you may be in a quagmire of repetitive false reporting that often accompanies custody cases, and DSS is generally very alert to false charges to gain advantage in custody cases. DSS is a very powerful agency with regard to children. Many times, DSS will do an investigation and make a finding such as abuse or neglect and recommend services and safety plans. If these services and safety plans are followed, then DSS will not generally file a petition with the court for removal of the minor child from the home. However, in serious cases, DSS can file a petition with the court to have the judge remove the minor child from the home of the mother or the father.  If mother and/or father are indigent, they are entitled to court appointed lawyers.

My overall advice is that you should concentrate on the facts of the current case before DSS. I do not know how serious the allegations are, but consider a family lawyer skilled in DSS representation. Good luck to you, and thanks for “Asking Carolyn.”

 

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Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation.  The column also uses hypothetical questions.  A subtle fact in your unique case may determine the legal advice you need in your unique case.  Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”


This blog is an excerpt from Ask Carolyn, available on kindle.