DCS “Confidential” means “Blab it all over court”

The old saying is “what happens in Vegas stays in Vegas” and one would rationally think that if one were signing an “agreement” to keep confidential what was said then it couldn’t be used against you in court.

But in the context of a CFTM meeting with DCS one would be mistaken.

CFTM meetings routinely start with DCS passing around a “confidentiality agreement” and explaining that it means that with the exception of reports of abuse anything that is said at the meeting stays at the meeting and cannot be repeated elsewhere. The “confidentiality agreement” has to be signed or the meeting cannot take place. And if the meeting does not take place then the parent, whose child(ren) is in the department’s custody is obviously “not cooperating” with the department. Cooperating with DCS is almost always a requirement of the permanency plan and so the parent if the parent wants their child(ren) back the parent must sign. And then a few months, or even years, later a caseworker testifies in court as to what the parent said at the meeting. Invariably it is always something damaging to the parent’s case.

I’ve been objecting to this practice. Some judges have sustained my objection. Some have not. I recently had one require further briefing of the issue and then decided to overrule the objection and allow the testimony. His rationale was that a permanency plan was the natural result of such meetings and it is admissible so the statements made in the formation of the plan (i.e. at the meeting) should also be admissible.

My argument in the brief was, first, the plain meaning of the language of the agreement is that the statements cannot be repeated in court unless they are reports of abuse. Interestingly enough when I went to the State’s website to get a copy of the confidential agreement form it was not there. (And this website was chock full of every form of literary sominex put out by the department). My second argument was fraudulent inducement as the State had gained my client’s signature telling them that what was said in the meeting would not be repeated elsewhere unless it was a report of abuse. My third argument was that even if the court could twist the meaning of the agreement to mean that the State could use the statements the agreement was unconscionable (one-sided) and thus unenforceable. After all the bargaining position of the parties was about as unequal as one could get given that the parent’s kids were in State’s custody and the parent HAS TO do the permanency plan (i.e. cooperate) to get their kids back.

I think they were good arguments but I have not been able to get them addressed by the Court of Appeals. From my research I can’t see where anyone else has been able to get them addressed by the Court of Appeals.


So what do you think???