Social Worker Can’t Compel You to Talk to Them Any More Than the Police Can
Video Transcribed: This is Keith Flinn, the Tulsa Fathers Rights Attorney, joined here with Oklahoma Fathers Rights Attorney Brian Jackson. We are the Tulsa Father’s Rights team here in Tulsa County, Oklahoma. We’re here to talk to you a little bit more about DHS, Child Welfare Services.
And I want to get a little bit into it because she filed a report this time and it’s naming you for all kinds of bad things. DHS is knocking on your door. They want to talk to you. And the detective is also giving you calls on your cell phone, trying to set up an interview. What do you do? You’ve got a right to keep yourself from incriminating yourself. You’ve also got a desire not to be kicked out of your house and taken from your kids, Brian.
Yes, obviously, anytime you’re dealing with an agent of the state who wants to ask you questions about a scenario where there might be something incriminating that comes out, you do absolutely have the right to remain silent under the federal constitution, the Fifth Amendment.
Now in criminal court, there is an absolute rule that your silence cannot be used against you in criminal court. So in that sense with the detective at least, you can basically tell them that you decline to make a statement, you can lawyer up and you should, and that can not be held against you in a criminal proceeding.
Child welfare is a little bit different. That’s not a criminal proceeding. It’s a civil proceeding or specialized kind of civil procedure, but it is a civil proceeding and the rules are a little different. The social worker can’t compel you to talk to them any more than the police can.
However, what happens if you don’t talk to the social worker, and I can tell you this from personal experience, having worked on these cases, the social worker is going to immediately go back and tell the DA, who’s going to tell the judge that you were uncooperative and the DA’s office will hold that against you and a judge can hold that against you potentially.
There is some legal authority that stands for the premise that if the jeopardy in civil court is high enough, for example, if you were facing termination and you would still have an open felony, that the court can’t hold your refusal there to testify or answer questions against you. It’s still kind of an open question because there’s case law that says that it’s a due process violation for them to use it against you.
There’s also case law that says it’s not. And so it’s kind of an open question, Oklahoma hasn’t been settled yet. As a general rule, you probably do want to cooperate to a point with DHS, although you’d definitely want to be advised by counsel also.
Yeah, you want a lawyer there, especially if you’re dealing with a situation where there are real serious allegations. If she says you hit the child, you touched the child inappropriately, gross neglect. Any of that kind of a scenario, your first phone call needs to be with a lawyer and have them there.
And your lawyer may shut it down. I mean, that may be the case, but in some cases, they will bring you in to talk. As far as it goes, I want to break down with Brian went over a bit, as far as the jeopardy is concerned and you’re right against self-incrimination.
Brian is not saying that you have a right to not answer questions in civil court. Rather, what he’s saying is if it gets bad enough, we’ll get in there and argue to that judge that they should not be taking any negative inferences based on your decision not to speak at that proceeding because there’s just too much jeopardy at play. Is that right, Brian?
Yes. That’s exactly right. And in that scenario, we would go in and tell the judge, “Judge, this is completely unfair.” If he remains silent, it’s going to affect his rights to his kids. If he doesn’t remain silent and he makes a misstatement of any kind, then it’s going to go right back to the DA’s office. He’s screwed. Who’s going to use it against him in criminal court.
And the DA is prosecuting both the termination and the criminal case. I used to do it for the state. We work together all the time. So it’s going to get there. They’re going to hear about it. And it’s just not fair. This has been Keith Flinn and the Fathers’ rights attorney Brian Jackson. Tulsa Fathers Rights team here in Tulsa, Oklahoma at the Wirth Law Office, give us a call.