Washington Law Review


When Child Protective Services (CPS) removes children from their home in Washington State, the State must hold a shelter care hearing within seventy-two hours to determine where the children should be placed while the investigation and dependency hearing proceed. RCW 13.34.065 requires the State to return a child to their parent’s care if there is a parent capable of caring for the child and there is no “serious threat of substantial harm” to the child. However, in July 2023, the Washington State Legislature will update RCW 13.34.065 to reflect a recently passed bill. This bill heightens the previous burden and requires children to be returned home unless there is an “imminent threat of physical harm to the child.” The new version of RCW 13.34.065 also prohibits the State from using a parent’s substance abuse as the sole reason to keep a child out of their parent’s care. This new language in RCW 13.34.065 directly conflicts with RCW 26.44.195, which instructs CPS to give parental substance abuse great weight in determining whether a child has been abused or neglected.

Parental substance abuse on its own should not be part of the judge’s determination in whether a child has been abused or neglected or whether they should remain in their parent’s care during the adjudication of a dependency proceeding. State law should require CPS to meet the definition of child abuse or neglect and prove that the child will be at imminent risk of physical harm to remove a child and place them with relatives or in foster care against the parent’s wishes. Parents have a fundamental right to the care and custody of their children. Fear and social stigma surrounding substance abuse are not compelling government interests that justify breaking families apart. To avoid the erroneous and harmful removal of children from their parent’s care, the Washington State Legislature must revise RCW 26.44.195 to remove the language about giving substance abuse great weight in findings of child abuse and neglect.

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