Paper Corrections

Running Head: VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES
Victims Rights and Child Protective Services

Courtney J. Points
First Colonial High School Legal Studies Academy
Abstract
Victims Rights and Child Protective Services addresses Child Protective Services policy
concerning the appeals process specifically concerning victims rights. This paper will lay out
victims rights in several states, such as Virginia, North Carolina, Texas, and Pennsylvania, go
into United States code and federal rule, and then analyze that in conjunction with Child
Protective Services policy. The United States affords crime victim many rights but victims in
Child Protective Services proceedings are not afforded those same rights. The analysis will show
that in Child Protective Services proceedings, victims should receive the same rights that federal
code guarantees to other crime victims.
Keywords: victim, rights, Child Protective Services
VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

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Victims Rights and Child Protective Services
Victims used to be the centerpiece of criminal justice and the legal system. This
functioned as a victim v. offender dynamic. Under the Code of Hammurabi, the point of criminal
justice was to fix the victim, i.e. restitution; Therefore, criminal justice was about the victim.
Unlike today, there was little pretense about punishments being functional for the larger
society. Around the 11th century, the victim centered approach faded away and the state v.
offender system was adopted (Trulson, 2005). This new dynamic paralleled with the
establishment of defendants rights has, over time, pushed victims to the sideline and almost
completely taken them out of the legal process. Victims have the least rights in the Child
Protective Services proceedings than anywhere else, and the rights afforded to victims in such
proceedings do not meet the rights guaranteed to crime victims by United States federal code.
Child Protective Services Overview
Child Protective Services (CPS) gets a report of suspected child abuse and/or neglect and
then follows up those reports by interviewing everyone close to the child. If the parent is the one
suspected, the CPS social workers will interview everyone they think might know something
before ever going to the parent(s). According to Darrell Harding, a family law attorney in
Hampton Roads for over twenty-five years, Child Protective Services has the right to interview
the child at school without parental consent. After the initial interviews, the social workers can
handle the report by either making an assessment or starting an investigation. An assessment is
for less serious allegations ones that are fixable and are done to offer the family any services
that could solve their problem. Mr. Harding used the following example: A single mother leaves
her young children home alone without adult supervision because she works two jobs. Child
Protective Services might choose to deal with this as an assessment for services and find a way
to provide child care or some other solution to get the children supervised. If the allegations are
more serious, like some kind of violence, CPS can move forward with an investigation. This

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requires the social workers to make a finding, either unfounded or founded on level one, two, or
three (from least to most serious). A founded decision can be attached to your name for about
seventeen years (Darrell Harding).
Child Protective Services and Victims Rights
In Virginia, when a Child Protective Services investigation is deemed founded, the
accused must be notified, and they have thirty days to submit a written request for appeal. The
first appeal is a local conference with the appellant and, if the appellant chooses, a
representative, and the case worker and supervisor who made the founded disposition and
neither the alleged victim nor victims parents if they are not the appellant are permitted to
attend (Child and Family Services Manual on Appeals). This appeal is less formal than the other
levels, and according to family law attorney of over twenty five years, Darrell Harding, it is a
more casual, lets see if we can work this out. At the local conference, the appellant can present
witnesses and evidence. The hearing officer has three options: keep the CPS decision the same,
unfound it, or reduce it. If the appellant is not happy with that decision, they can appeal again to
the state level, which is more formal. The appellant can still present witnesses and evidence and
the hearing officer has the same three options for a decision. If the appellant is still not happy,
they can appeal it again to the circuit court (Child and Family Services Manual on Appeals). This
appeal is overseen by a circuit court judge and is done based off of the transcript from the state
appeal (Harding 2015). Throughout all of the appeals, the local department has the burden of
proof.
After the recorded interview and investigation, the victim has no involvement in the
Child Protective Services proceedings, nor many rights. Even if a victim wants to participate,
such as testifying, they are not allowed to according to Virginia code 63.2-1526B, which states
the victim child and that childs siblings shall not be subpoenaed, deposed or required to testify
(Child and Family Services Manual on Appeals). While this may be intended as a way to protect

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child victims from the stress and pain of testifying about the abuse they suffered or their parent,
it creates a blanket policy that might do just as much harm. It is reasonable that very young
children are not developed enough emotionally to withstand participating, but there is room to
argue that older children are and it could be to their advantage. Testifying or being involved in
some way, such as being present at an appeal hearing, can help a child find closure and feel in
control in a situation that made them feel helpless. While victims do not have many rights,
according the Child and Family Services Manual on Appeals, section 7.4.6.9, the local
department of social services must notify anyone who was originally informed, including the
complainant as well as custodial and non-custodial parents of all victim children if initial
disposition is amended.
Victims State Rights
Virginia
Article I of the Virginia Constitution Bill of Rights 8-A 3 affords victims:
The right to address the circuit court at the time sentence is imposed; The right to receive
timely notification of judicial proceedings; The right to restitution; The right to be
advised of release from custody or escape of the offender, whether before or after
disposition; and the right to confer with the prosecution.
In juvenile court, protection of victim rights and constitutional safeguards remain the same as
every other court in the state (The Juvenile and Domestic Relations District Court).
North Carolina (Child Protective Services)
Like Virginia, North Carolina Child Protective Services follow up allegations of child
abuse and/or neglect with two types of processes: Investigative Assessments and Family
Assessments (United States, North Carolina). Family members should be made to feel their
involvement and participation throughout the life of the case is crucial and that their feedback is
valued.
The North Carolina Court of Appeals ruled in 2010 that without giving a person the
opportunity for a judicial review hearing, it would be unconstitutional to place that individuals

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name on the Responsible Individuals List (Chapter VIII: Protective Services). This established
Session Law 2009-507 (SB-567), under which the appeal goes before a judge and not a jury and
the individual in question has:
The right to present sworn evidence, law, or rules; the right to represent themselves or
obtain the services of an attorney at their own expense and; the right to subpoena
witnesses, cross-examine witnesses of the other party, and make a closing argument.
The right to appeal to a judicial review hearing is limited to investigative assessments and does
not extend to family assessments (Chapter VIII: Protective Services).
Texas
Texas state code has gone from needing more than a victims word, to only needing
victims word in certain cases because of age. Prior to September 1993, in sex crimes cases, state
code:
Specified that a victims testimony alone about a sexual offense could not support a
conviction unless corroborated by other evidence or if the victim had informed another
person of the offense within six months of its occurrence (outcry). (Carmell v. Texas)
The exception to this was that if a victim was under fourteen at the time of the offense, the
victims testimony alone could support a conviction. A 1993 amendment allowed the victims
testimony alone to support a conviction if the victim was under eighteen (Carmell v. Texas).
Pennsylvania
George Ritchie was charged with and convicted of several sexual crimes against his
daughter. She was thirteen when she went to the police, but she said the abuse had been going for
the past four years. The judge placed no limitation on the scope of cross-examination, except
for routine evidentiary rulings (Pennsylvania v. Ritchie). This case sets a precedent that children
can testify against their abuser in open court.
Federal Victims Rights
Victim involvement could potentially affect defendants rights to a fair and speedy trial
(Baumgartner, 2008). As in Booth v. MD 1987, the Supreme Court decided that victim impact
statements risked introducing arbitrary evidence about the victim" and violates the defendants

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eighth amendment rights (Wood, 2005). Victim impact statements force juries to base their
sentencing decisions on irrelevant information, rather than adhering strictly to the facts of the
crime (Booth). According to Supreme Court Justice Powell, introducing emotionally-charged
opinions of family members into the process would erode the reasoned decision making which
is crucial in capital cases (Booth).
The Victims Rights Clarification Act (VRCA) of 1997 grants victims of federal crimes
and their relatives the right to be present during criminal justice proceedings in addition to the
right to testify during the penalty phase of the process. (Wood, 2003) The judge in the
Oklahoma bombing case ruled that victims could attend the trial or testify during the sentencing
hearing, but not both; He wanted their testimony to be solely what they experienced and not to be
influenced by their reaction to the trial (Wood, 2003). While this decision may be against the
exclusionary rule of the Victims Rights Clarification Act, under 18 U.S.C. 3510, which also
provides the right to attend trials and not be excluded from being sentencing hearing witnesses,
federal law provides an exception and allowance for exclusion in cases where victims
participating in both would create unfair prejudice, jury confusion, [misleading of the jury], or
as constitutionally required (Doyle).
18 U.S.C. 3771 lays out general crime victims rights. In regards to victim knowledge
and presence at hearings, the statute provides that crime victims have the right to be notified of
and the right to be reasonably heard at any public court proceedings, as well as:
The right not to be excluded from any such public court proceeding, unless the court,
after receiving clear and convincing evidence, determines that the testimony by the
victim would be materially altered if the victim herd other testimony at that proceeding.
(Title 18, 3771, 2015)

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Under section (b) Rights afforded, subsection (1), before a victim is excluded, the court must do
everything they can to construct an alternative in order to allow the victim the fullest attendance
possible.
Under the United States Federal code 3509 child victims and witnesses are given more
rights than in Child Protective Services appeal hearings. If a judge finds a child unable to testify
in open court, the judge can rule that the child testify via a two-way closed circuit television.
One argument against children not testifying in court is their lack of maturity and the cognitive
development necessary to testify essentially, competence. Under section (c) Competency
examinations, subsection (2) Presumption, the statute states that a child is presumed
competent. The note decision U.S. v. IMM, C.A.9 (Ariz.) 2014. 747 F.3d 754 used this
presumption when allowing a seven year old boy to testify in open court. In reply to questions
about the boys competency and maturity, the court concluded that:
Even if the child could not understand exactly what an oath required, the court concluded
after questioning the child that the child understood the difference between truth and
falsity, and that he understood the special importance of speaking truthfully while
testifying. (Title 18, 3509, 2015)
International Criminal Court
The wording regarding victim participation in international criminal court is rather broad,
which leaves room for discretion:
Where the personal interests of the victims are affected, the court shall permit their views
and concerns to be presented and considered at stages of the proceedings determined to
be appropriate by the court and their participation may not be prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial. (Baumgartner,
2008)
This does not provide any clear guidelines as to what is appropriate and such determination is at
the discretion of the judge. In the Lubanga case, victims were allowed to present their views in

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written and oral form with regard to all the procedural and substantive issues that arose prior to
the actual trial procedure (Baumgartner, 2008).
In Canada, victims rights are protected under The Canadian Victims Bill of Rights.
Enacted July 23, 2015, the act provides victims the right to information, protection, participation,
and to seek restitution (Rights, 2015). The right to participation includes giving Victim Impact
Statements and to express their views about the courts decisions that affect their rights
(Rights, 2015).
Child Victim Representation
Just as adults have legal representation during any form of litigation, child victims need
representation as well. Most often, children are represented by guardians ad litem. A guardian ad
litem represents children and other incompetent persons in any form of litigation where the child
or incompetent person has an interest, such as divorce and custody, criminal abuse and/or
neglect, or adoption. They are the childs guardian: To decide what is in the best interest of the
childs safety and mental, physical, and emotional well-being. Technically, they are a lawyer
because GALs in the state of Virginia must be members of the bar and be in good standing. Some
guardians ad litem will use a questionnaire to get background information. A GAL will interview
the child and their parents, and sometimes other parties that have a close relationship with the
child that they represent. There are many cases, though, where a guardian ad litem does not
conduct a face to face interview in preparation for trial or might do so at the eleventh hour.
Some, but not all, GALs will conduct a home-visit to better assess the situation, the childs
living, or possible living environment, the parent(s), and the family as a whole. After speaking
with the child, their parents, and conducting a home visit, the guardian ad litem will then come to
a conclusion and present that to the court as their recommendation. According to The Role of the
Guardian ad Litem in Custody Cases, most states and judges do not require that this
recommendation be documented or presented in the form of a written report which contains two

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main parts: general background and recommendation with witnesses. Written reports are usually
only done if the judge has specifically requested one, and of those judges, some read the report
before judicial proceedings begin, and others read it afterwards before giving judgment. The time
that a judge chooses to read a report can make a difference and change the balance of the court
proceedings. There have been instances in which a judge has read a written report first and then
changed the burden of proof; One party should convince the judge not to follow the guardian ad
litems recommendation. In order to combat this bias, it has been suggested that written reports
be presented and read in two parts; the judge will read for the court the general background
before and the recommendation and witness portion of the report will be sealed and viewed after
all parties have presented their cases. The lack of consistency of whether or not home visits are
conducted, written reports are submitted to the court, or when those reports are read, shows that
the laws and policies currently in place that govern guardians ad litem are not enough. The
judges of the Oliver Hill Court agree that there should more explicit and written standards for
guardians ad litem. Eveleigh and Flax, both attorneys with backgrounds in family law, suggest
the following guidelines for GALs to be clearly established: they must meet the child face to
face, interview the child, parents, and other relevant parties, conduct a home visit acquire and
view any records that would be relevant, and submit a written report to the court as well as
explain what is going on and what things mean to the child in terms they can understand
(Eveleigh & Flax, 2002).
While guardians ad litem are the most common child representatives, The Child-Victims
Rights Bulletin suggested the use of the traditional lawyer and compared and contrasted the
positives and negatives of the two. A traditional lawyer representing a child would still be
required to be competent, as well held to the other standards that lawyers representing adults are
held to. Such standards include maintaining confidentiality, keeping the child informed, and

10
respecting the childs wishes. The last duty is key to what separates a traditional lawyer
representing a child from a guardian ad litem. While both are the childs advocate, the traditional
lawyer represents the child while the GAL is the childs guardian; the traditional lawyer fights
for what the child wants, and the guardian ad litem fights for what is in the best interest of the
child. As previously mentioned, older children could arguably, in many cases, be mature and
competent enough to make wise decisions and therefore benefit from a traditional lawyer which
will give them the greatest autonomy. It has to be conceded that younger, less mature children
would not be able to handle that, and the use of a guardian ad litem would be the better option.
For children in general, the GAL is by nature better to be a childs advocate because they have
special training to work with children and experience with the special cases and cases dynamics
they involve. GALs, putting aside their personal bias, will make a less subjective
recommendation than the decision a child would come to. Children can make wise decisions, but
it cannot be forgotten that unlike the guardian ad litem, a child has their parent(s) and other
involved parties influencing them directly or indirectly. Traditional lawyers and guardians ad
litem both have the ability to properly represent a child victim and achieve what is right, but
neither is perfect for every child or every case; when deciding between the two, the childs age,
maturity, and relationship to their offender must be taken into consideration (Child-Victims
Rights Bulletin).
Analysis
The legal system is inherently flawed; it is designed, overseen by, and executed by
people. Jennifer Wood of the Western Journal of Communication wrote, Balancing the rights of
defendants against the rights of victims risks unfair treatment for both. By nature, giving
something to one person takes something away from another. Defining and upholding

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defendants rights and victims rights while maintaining a balance between the two is
complicated.
Emotionally, it can be understood why people would feel for victims and understand why
they would want to be involved. Some may say that victim participation is crucial to getting the
whole story, but victim involvement also poses many problems. For example, what does victim
involvement do to the balance of the defense versus prosecution? Most people without a legal
background are inclined to believe that victim and prosecutor are the same team with the same
goal. In reality, the latter is not true. The victim tends to only think about themselves, their pain,
and what they think should be done to serve justice. While the prosecutor may feel for the victim
and share a disdain for the defendant, and generally want to convict criminals, the victim does
not usually care about the prosecutors case theory or the intricacies of the legal process.
Victims care about the outcome while prosecutors have to worry about how they reach outcome
(Hobbs, 2014).
Senator Diane Feinstein pointed out that criminal defendants have 24 constitutional
rights, (15 of them are amendments) but there is not a single word about the victims. She
believes that there should be a victims rights amendment to level the playing field (Wood 2005).
The Task Force on Victims of Crime would agree with Feinstein; Their Final Report shares new
ideas on policies and programs to help victims, the last of which includes a United States
constitutional amendment that would guarantee the victim, in every criminal prosecution, shall
have the right to be present and to be heard at all critical stages of judicial proceeding ("Crime
Victims Rights in America: An Historical Overview," 2007). An amendment to the United States
Constitution to include victims rights may appear as if it is upholding more peoples rights, it
could very do the opposite; It could undermine the presumption of innocence and other due
process rights of those accused of a federal crime (Victim rights can distort justice).While the

12
senator has a point, her perspective seems to forget several federal codes that define crime
victims rights.
What needs reform are victims rights in Child Protective Services. While it is not a
traditional legal authority and does not have criminal authority, they can still take children away
from their parents and decided whether or not a parent is labeled an abuser or neglector.
Throughout the Child Protective Services process victims have very few rights. Victims are
notified of the CPS decision and if it is amended but that is it. United States federal code affords
victims of crimes many more rights. Technically, many accusations made to Child Protective
Services are about crimes. The problem is that when dealt through CPS, the abuse/neglect
against the child is not dealt with as a crime because Child Protective Services does not have the
authority to charge abusers/neglectors with crimes or try them for such. This is not to be
construed as argument for extending judicial power the ability to charge and try offenders, over
crimes against children to CPS. Essentially, Child Protective Services are handling cases about
crimes and dealing with crime victims, but those victims are not receiving all the rights afford to
crime victims under United States code. In CPS procedures and appeals hearings, victims are not
Reasonably heard (Title 18, 3771, 2015)

Permitted to attend any hearing (i.e. appeal)
Permitted to testify
It must be conceded that the codes asserting crime victims rights say public proceedings and
juvenile cases and Child Protective Services cases are not open to the public. With that being
said, the restriction of public access to such is done to protect the children/minor age victims
involved. Victims in a CPS case would then not be included in the general public but rather an
involved party privy to information and the public requirement in the federal code would not
apply to the victim.

13
To know if the status quo is working, the victims and their experience need to be taken
into consideration. According to Kilpatrick, Beatty, and Howley, victims who view the criminal
justice system unfavorably are likely to share that opinion with others, thereby undermining
confidence in the system. Even with all the right legislation, victims rights may still be
violated. In order to determine if legislation has an impact on crime victims rights and whether
or not they were effective, the National Center for Victims of Crime surveyed 1,300 crime
victims from four different states two states with stronger victims rights protection and two
states with weaker victims right protection. The participants were asked:
Were they kept informed of case proceedings and their rights as victims? Did they
exercise those rights? Did they receive adequate notification of available victim services?
Did they receive restitution for the crime committed against them? They also were asked
what losses they suffered as a result of the crime, and they rated their satisfaction with the
criminal justice process and its various representatives. (Kilpatrick, Beatty, Howley)
According to this survey, strong victims' rights laws make a difference, but in many instances,
even where there is strong legal protection, victims' needs are not fully met. In the strong
victims rights legislation states, one of every four people said that they were dissatisfied with
the criminal justice system. With that said it must be conceded that this number could include
dissatisfaction in regards to non-victim rights issues but rather personal issues, like a case not
going the way they wanted. On the other hand, the survey revealed that about fifty percent of
them had not received notification of the sentencing hearing, and in all four states, substantial
proportions of victims were not informed of their rights (Kilpatrick, Beatty, Howley). The key
to victim participation is notification. If a victim is not notified of what it is going on in the
criminal justice process, they are unable to participate even if they know all their rights to do so;
without upholding notification standards, the entirety of victims rights is compromised. Upon

14
being notified, victims need to know what to do. For the most part, people do not know the law,
even as it applies to them, passed what they may have learned in grade school such as the Bill of
Rights. That being said, it is important for victims to be informed of their rights throughout the
process. According to The Rights of Crime Victims-- Does Legal Protection Make a Difference,
lack of funding is blame for inadequate victim services. Roughly one-third of local officials said
their office had funding for use in victim services programs or for implementing victims'
rights, and very few of those without funding said they had actively sought it in the previous
year.
Victims should have the same rights in Child Protective Services as victims have in
criminal and juvenile court but they do not. Those rights then need to be universally upheld with
the proper funding, notification, and informing of victims.

15
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Running Head: VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

Victims Rights and Child Protective Services

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

Reasonably heard (Title 18, 3771, 2015)

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

VICTIMS RIGHTS AND CHILD PROTECTIVE SERVICES

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