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How to deal with CPS
Why every CPS interaction is a disability under the ADA
Absent intent or authority as legal advice.
I’m a Certified ADA Advocate, and I’m here to tell you that EVERY CPS interaction is a disability under the Americans with Disabilities Act (ADA).
You’ve gotta be joking. NO. I’m not.
How does this benefit you? Well, if you understand what I’m saying here, you can invoke the ADA, and have the CPS in a position it is not accustomed to being in.
If you want to shift the dynamic, keep reading all the way to the end of this.
WHAT IS A DISABILITY?
The ADA defines a disability as a physical or mental impairment (or physiological condition) that substantially limits one or more major life activities.
For the purposes of this article, I’m going to stick with the “regarded as” prong. Regarded as, is when someone who is subject to the ADA (CPS is definitely subject to the ADA, being a state agency) treats you as if you have a disability, and that situation cannot be transitory and minor (both qualifiers apply.)
Well, since CPS totally turns lives upside down, any reasonable person would agree that a CPS interaction is not minor, and that it is major. It may or may not be transitory (lasting less than six months).
HOW IS IT A DISABILITY?
When CPS contacts you, it is because they regard you as disabled.
They regard you as having a physical or mental impairment that substantially limits your ability as a parent or the ability of your child(ren) to (1) interact with others, (2) communicate, (3) caring for yourself, (4) eating, (5) sleeping, (6) thinking, and (7) learning. (All of these are major life activities that they regard as being substantially limited.) They DEFINITELY assess all of these with a “guilty until proven innocent” posture, so this is DEFINITELY them regarding you and/or your child(ren) as disabled.
There may additionally be claims by CPS that alcoholism or drug addiction is at issue, and these two are listed as disabilities in the ADA.
HOW DOES THIS KNOWLEDGE BENEFIT ME?
When CPS shows up, they are bullies, plain and simple. Sheer terror goes through the heart of any parent that has a CPS encounter. How can you turn the tables?
Well, Title II of the ADA (28 CFR §35.178), and a Supreme Court case called Tennessee v. Lane, 541 US 509 strips the immunity from the state concerning ADA claims. That means that the CPS that is accustomed to operating under sovereign immunity of the 11th Amendment can be sued in federal court if you have ADA claims against them.
HOW DO THEY BREACH THE ADA?
In addition to regarding you and your child(ren) as disabled (which is very important), they also use EVERY prohibited act found in 28 CFR §35.134(b), which states:
“No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part.” (emphasis added)
CPS Coerces, intimidates, and threatens ALL individuals. Invoking the ADA just switches the dynamic so that it’s now prohibited.
CPS definitely interferes with the exercise and enjoyment of ADA rights, and as a parent, I would definitely be “aiding and encouraging” my child to exercise and enjoy their ADA rights as well.
CAVEAT: There is a principle in the current precedent field of case law that the police are allowed to secure the situation. If there are exigent circumstances, then the ADA should still be invoked, in my opinion, but may be set aside until the exigent circumstances are cleared. There are three levels of response that CPS pursues. 1. Negligence (usually requires an under 72 hour response) 2. Abuse (Abuse claims are going to be exigent circumstance matters, and there is usually a 24-48 hour response required by CPS) 3. Sexual abuse (Definitely assumes exigent circumstances, and requires an ASAP response, in less than 24 hours from the report.)
I disclaim that invoking the ADA, and having a well thought-out plan is advantageous, and yet, CPS still pursues sometimes baseless reports, and is often used to retaliate against victims that are faultless. I do understand that there are situations that CPS may need to be involved in, but that system is broken, fucked up, and not going to be fixed.
So using the ADA is a game changer, and yet when it begins to make a difference in the process will depend on the level of report, whether it is negligence, abuse, or sexual abuse that is being reported on, and laid at your front door.
WHAT IF YOU OR YOUR CHILD HAS AN EXISTING DISABILITY?
If you’re in a custody battle, or in a position that you are likely to be retaliated against with a bogus CPS report, it would be wise to document your remedy before you have to use it. FEW people do this, however, and that means the rights you could have preserved, are down the toilet, because you cannot retroactively assert what I am talking about here, because it’s not a “readily apparent” disability. You have to invoke it immediately upon contact, and it has to be clear and presented properly.
With that said, pulling out a clear invocation of the ADA would look something like this:
I invoke the Americans with Disabilities Act, because ____________________________ (name the state or local government agency) is regarding me as disabled, alleging that my or my child’s major life activities of interacting with others, communicating, caring for ourselves, eating, sleeping, thinking, learning and others are substantially impaired.
I demand that you refrain from the prohibited acts found in 28 CFR §35.134(b), which states: No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part.”
I ask for the reasonable accommodation of calling my ADA Advocate and/or lawyer before you question me or my children. You can see that we are not in a life threatening danger, and we have no apparent crisis, other than you being here.
(I believe that CPS regularly breaches many rights enumerated in the Constitution, but they claim sovereign immunity for what they do. I also believe the ADA will change that shit.)
I hope this helps, but if you need more assistance than this article provides, drop me a line at adarights (at) protonmail (dot) com.
P.D., JAY V SHORE, as Certified ADA Advocate