Child removed or detention hearing within 72 hours? Call now: 949-209-5033

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CPS Defense Guide

What to do in the first 72 hours after CPS removes your child in California

If CPS just removed your child in California, the next 72 hours are critical. This guide explains your legal rights, what happens at the detention hearing, and the five steps you must take immediately to give yourself the best chance of bringing your child home.

If you are reading this right now

You are not powerless. What you do in the next 72 hours will shape whether your child comes home. Keep reading, then call an attorney immediately. 949-209-5033

If you are reading this, CPS may have just taken your child, or you fear they are about to. You are likely terrified. That fear is completely understandable.

This guide is written for California parents navigating an emergency CPS removal, also called a detention. It explains exactly what happens legally, what your rights are, and the five steps you must take immediately. It applies to all California counties, including:

  • DCFS in Los Angeles County
  • SSA in Orange County
  • CFS in San Bernardino County
  • DPSS in Riverside County
  • All other California counties

What happens legally in the first 72 hours after CPS removes your child?

When a CPS social worker takes your child on an emergency basis, California law sets strict deadlines designed to protect your constitutional rights. Here is what must happen.

CPS must file a petition within two court days

Under Welfare and Institutions Code §§ 311 and 313, CPS has two court days, meaning days the court is in session, to file a juvenile dependency petition alleging abuse or neglect. If they fail to meet this deadline, they must return your child immediately.

A detention hearing is set within one judicial day of filing

Once the petition is filed, the clerk schedules a detention hearing no later than one judicial day after filing (WIC § 311). At this hearing, you and your attorney can argue for your child to come home.

You must receive notice at least 24 hours before the hearing

CPS is legally required to notify you of when and where the detention hearing will occur, and to provide you a copy of the petition, no later than 24 hours before the hearing (WIC §§ 290.1, 290.2). If CPS fails to properly notify you, the court cannot accept the petition, and your child must be returned.

Real-world timeline example

Friday afternoon. Your child is removed by CPS.

End of day Tuesday. CPS must file the petition, being the next two court days. You must also receive notice by this deadline.

Wednesday. Detention hearing is held. You and your attorney argue for your child to come home.

That is a narrow window. Every hour matters.

Five steps to take immediately after CPS removes your child

Do not make any statements to CPS without an attorney

This is the single most important thing you can do right now.

Anything you say to a social worker can and will be used against you in court. CPS social workers are trained to gather information that supports their case. They may appear sympathetic. They are not your ally in this moment.

Social workers will sometimes use threats or promises to pressure you into:

  • Consenting to a search of your home
  • Signing documents you do not fully understand
  • Providing information that will be used against you at the detention hearing
What to say
"I am not going to make any statements, sign any documents, or give consent to anything until I have spoken with an attorney."

You have the right to remain silent. Use it.

Demand a warrant, or a clear explanation for the removal

CPS is required to provide a legal basis for taking your child. Ask the social worker directly:

  • "Do you have a warrant?" If yes, they must show it to you.
  • "What is your reasonable cause to believe my children are in immediate danger?" If they did not have a warrant, they must provide this justification.

Under Welfare and Institutions Code § 305, CPS can only remove a child without a warrant when there is reasonable cause to believe the child:

  • Is in immediate need of medical care, or
  • Is in immediate danger of physical or sexual abuse, or
  • Faces an immediate threat to health and safety from the physical environment or being left unattended, or
  • Was found in a public place suffering from sickness or injury
Important

If CPS removed your child without a warrant and without a legally sufficient reason, this may form the basis of a civil rights claim. Document everything. You have the legal right to film social workers while they are performing their official duties, just as you have the right to film police.

Contact a family defense attorney immediately

You have days, not weeks, before the detention hearing. A court-appointed attorney may not be assigned to your case until the morning of the hearing. By then, it is often too late to build an effective defense.

A private family defense attorney can:

  • Begin building your defense strategy immediately
  • Obtain the warrant application or gather information about the basis for detention
  • Advocate for visitation before the hearing
  • Identify and prepare evidence and witnesses
  • Appear at the detention hearing prepared, not scrambling
Do not wait

Every day without an attorney is a day the other side is building their case against you.

Build your defense before the detention hearing

Part A. Gather intelligence on the allegations

You will not know the specific allegations until CPS serves you with the petition, no later than 24 hours before the hearing. But you can start gathering information now.

  • If CPS had a warrant. Your attorney can obtain the warrant application from the Juvenile Court clerk. It will detail why CPS sought court authorization to remove your child.
  • If CPS did not have a warrant. Demand to know their stated reasonable cause. Your attorney can contact the CPS attorney directly to obtain this.

Part B. Understand what the court is deciding

At the detention hearing, the court is not deciding whether the allegations are true. The court assumes the allegations are true, meaning worst-case scenario, and asks: can the children safely return home despite that risk?

The court must release your child unless it finds all three of the following:

  • CPS has made a minimum evidentiary showing that the allegations meet the legal standard
  • Returning your child to your custody would be contrary to the child's welfare
  • There is a substantial danger to the child's physical or emotional well-being and no reasonable alternative to removal exists

Part C. Develop your strategy

There are two primary defense strategies at the detention hearing:

  • Attack the evidence. Show that CPS exaggerated the risk, omitted key facts, or that the allegations do not establish a substantial danger to your child.
  • Offer a safety plan. Even if some risk exists, argue that your child can safely remain home with a safety plan, such as another adult residing in the home, regular drug testing, a restraining order, or a treatment program.

Part D. Gather your evidence

Once you understand the allegations, begin collecting evidence that directly responds to them. Common examples include:

  • Clean drug test results, if substance use is alleged
  • Medical or mental health records from treating providers
  • Character letters from teachers, coaches, family members, neighbors
  • Proof of a restraining order or separation, if domestic violence is alleged
  • Documentation that the alleged risk has been addressed or eliminated
Backup plan

If the court still orders removal, identify a trusted relative or close family friend who can take your child in immediately. Placement with a known, trusted adult, rather than a foster home, substantially improves the chances of reunification.

Know your visitation rights

If your child is removed, you do not lose your right to see them. California Rules of Court, rule 5.670(c) provides that a detained child's parent has the right to regular visitation unless the court finds it would be detrimental to the child.

  • The judge will issue a visitation order at or after the detention hearing
  • Visits may be supervised or unsupervised depending on the allegations
  • Your attorney can argue for unsupervised or expanded visits
  • If the detention occurs on a Friday, you may not have a hearing until Wednesday. Your attorney should immediately advocate for you to see your child before then.

Common mistakes parents make after CPS removes their child

Talking to CPS without an attorney

The instinct to explain yourself is understandable, and dangerous. "If I could just tell them what really happened, they'd understand." This almost never works and frequently makes things worse. Everything you say becomes a record CPS will use in court.

Keeping supportive people out of the loop

It takes a village. The support system you build in these first days, family members willing to provide childcare, character witnesses, people who can testify to your parenting, can make or break your case. Do not try to handle this alone.

Letting the wrong people into the loop

Your CPS case is confidential. Not everyone who claims to support you has your best interests, or your child's, at heart. Be strategic about who you share information with. Make clear to your social worker that you do not consent to sharing case information with individuals outside your identified support circle.

Voluntarily surrendering your child to CPS

CPS will sometimes ask parents to "voluntarily" place their child with CPS or a relative. This is rarely truly voluntary, and agreeing waives important legal protections. Decline, and let your attorney advise you.

CPS may still seek a warrant or detain your child on an emergency basis regardless. But requiring them to do so, rather than handing them your child, preserves your constitutional rights and your ability to challenge their actions in court, including through a potential civil rights lawsuit.

Your constitutional rights in a CPS removal

The legal framework governing CPS removals exists for one reason: to protect your constitutional rights as a parent. The California Court of Appeal was unambiguous.

Before a child is removed from his or her parent's care, the parent has the fundamental right to adequate notice and the opportunity to be heard. In re R.O. (2022) 83 Cal.App.5th 586

This means:

  • You have a due process right to be notified and heard before your child is officially removed
  • A warrantless detention requires a legally sufficient basis. If it does not exist, your Fourth Amendment rights were violated
  • Failure to provide proper, timely notice may require the court to reject the petition and return your child
Civil rights claims

If any of these rights were violated in your case, those violations matter, both for your defense in juvenile court and for potential federal civil rights claims under 42 U.S.C. § 1983.

Frequently asked questions.

How long does CPS have to file a petition after removing my child in California?

CPS has two court days (days the court is in session) to file a juvenile dependency petition. Failure to file within this window requires CPS to immediately return your child. (WIC §§ 311, 313)

What happens at a CPS detention hearing in California?

At the detention hearing, a judge decides whether your child will remain in CPS custody until trial, or return home. You have the right to appear with an attorney, present evidence, and argue for your child's return. The hearing must occur no later than one judicial day after the petition is filed.

Can I refuse to let CPS into my home in California?

Yes. CPS generally cannot enter your home without your consent or a warrant. You have Fourth Amendment rights. You can decline entry and ask whether they have a warrant. If they do not, ask them to state their legal basis for any emergency entry.

Do I need a lawyer for a CPS detention hearing?

Strongly yes. The dependency court process is complex, deadlines are tight, and what happens at the detention hearing sets the trajectory of your entire case. A private attorney who starts working immediately, not the morning of the hearing, gives you the best chance of getting your child home.

What is a CPS safety plan in California?

A safety plan is an agreement between you, CPS, and sometimes the court that outlines measures to keep your child safe at home rather than placing them in foster care. Examples include having another adult reside in the home, regular drug testing, or enrolling in a treatment program. While safety plans can be effective tools, they should always be negotiated with an attorney. What appears to be a voluntary agreement can have legal consequences you may not anticipate.

About this article

Written by the attorneys at K. Adeniyi Law, APC, a California family defense firm representing parents in CPS investigations and juvenile dependency proceedings. It is intended for general educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Every case is different. Consult a qualified attorney about your specific situation.

California Welfare and Institutions Code §§ 305, 311, 313, 319; California Rules of Court, rule 5.670; In re R.O. (2022) 83 Cal.App.5th 586.
Protect your family

Get legal help now.

You have already taken the most important first step: arming yourself with knowledge. The second step is securing experienced legal representation before the clock runs out.

At K. Adeniyi Law, we represent parents in CPS investigations and juvenile dependency cases throughout California, including Los Angeles, Orange County, San Bernardino, Riverside, Sacramento, and San Francisco.

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K. Adeniyi Law, APC

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