What to Do When CPS Asks for a Drug Test in Texas

Quite frequently I get the call from potential clients when they have come under the radar of CPS after someone has placed an anonymous call to the Texas Department of Family and Protective Services. If the caller stated, you were using illegal drugs or that you were arrested for a drug related offense then there is a good chance a case worker will show up at your door asking that you take drug test.

What is CPS?

CPS or the Child Protective Services is part of the Texas state agency, the Texas Department of Family and Protective Services. CPS is required by law to investigate reports of child abuse or neglect.

CPS has specific time requirements, deadlines, and hearing protocols set forth in Federal Law, the Texas Family Code, and TDFPS handbook.

This means if someone makes a report such as the one described in the above scenario and if there are children involved then a CPS caseworker will be tasked with investigating the report.

Who Called CPS?

Many times, the people who meet with me know who called CPS on them. However, under Texas law everyone has a duty to make a report when child abuse is suspected this means it could be anyone. However, the law places a special duty on certain individuals such as:

  1. Doctors
  2. Lawyers and
  3. Therapist

All allegations of abuse or neglect are reported to a central intake office in Austin. Allegations can be reported by:

  1. calling 1-800-252-5400 or making a report
  2. online at https://www.txabusehotline.org

CPS Investigations

Each intake call is assigned a priority level and referred to an investigative worker in the county where the child lives.

A CPS investigation can lead to one of several outcomes:

  1. reason to believe;
  2. unable to determine;
  3. unable to determine with risk indicated;
  4. ruled out;
  5. ruled out with risk indicated; or
  6. unable to complete;

Can CPS take my child?

Yes, CPS can take your child.

If CPS investigates a report and believes the child to be in danger, it can remove the child from the unsafe environment.

An unsafe environment can include:

  1. use of illegal drugs by members of the child’s household,
  2. failure to provide enough food or
  3. sufficient medical care
  4. failure to keep firearms locked up
  5. physical violence to the child or another household member, and
  6. sexual contact with a child

There are generally three ways a child may be removed from you:

  1. Immediately if CPS determines a child is at risk of immediate harm or danger or
  2. by filing a lawsuit and requesting a Court Order
  3. Getting you to agree to voluntarily place the child with a friend or relative

What happens after CPS removal? – The Full Adversary Hearing

Under the Texas Family Code Section 262.201 a court hearing is required to be held within 14 days after the children are removed.

CPS has the burden at the full adversary hearing of showing the following:

  1. there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
  2. the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and
  3. reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.

At this hearing, the judge will make decisions on the following:

  1. The child should be returned to the home;
  2. Stay with a friend or family member, or
  3. Remain in CPS custody (foster care)
  4. Whether to order parents to attend parenting classes
  5. Whether to order parents to complete an anger management course,
  6. Whether to order parents to go through a drug or alcohol rehabilitation program
  7. Whether to order parents to other requirements before the child will be returned

Prior to the hearing, CPS will:

  1. notify the child’s parents in writing and
  2. will provide any papers filed with the court that supports the removal.
  3. The papers will include a statement by the investigator with the reasons for the removal.

Permanency Conference or Family Group Conference

Generally, after the full adversary hearing and before the status hearing, CPS will hold a permanency conference or a family group conference.

The purpose of these meetings is to discuss:

  1. the long-term goals for the child
  2. the needs of the child, and
  3. the services the parent need to complete

The goals can include:

  1. family reunification
  2. relative or unrelated adoption
  3. relative or unrelated conservatorship
  4. TDFPS conservatorship with or without termination, or
  5. independent living

The needs of the child can include:

  1. a medical exam
  2. forensic interview
  3. psychological, therapy
  4. educational assessment etc.

What is a CPS service plan?

A service plan is a written plan setting forth CPS recommendations and steps that must be taken before the child will be allowed to return home.

No more than 45 days after the full adversary hearing CPS must file a family service plan which specifically lays out the services CPS is requesting the parent to complete in order to achieve the permanency goal.

For example, if the child was removed for physical abuse and there are no positive drug tests or any allegations of drug use; it may not be necessary for a parent to do a drug and alcohol evaluation and random drug testing to alleviate the reason for the child’s removal.

A typical family service plan will include the following:

  1. Parenting Classes
  2. Stable and hazard free housing for 6 months;
  3. Stable income for 6 months;
  4. Psychosocial or psychological;
  5. Individual counseling;
  6. Random drug testing;
  7. Drug and alcohol assessment;
  8. Attend all visits, court hearings, and meetings;
  9. Maintain weekly or monthly contact with the caseworker; and
  10. Notify the caseworker within 24 hours of moving or a change in phone numbers

Drug Testing

Drug and alcohol testing have become commonplace in CPS cases. New types of testing have been developed to help determine what the person is using illegally since most drug users are not always truthful.

If your children have not already been removed the drug test that is performed is typically a swab or urine test.

If you test positive the CPS case worker will ask you to voluntarily sign a safety plan that places your children with another friend or relative. If you refuse, they will likely, but not always file a suit and state the basis to remove the child is neglectful supervision.

Neglectful Supervision

The elements of neglectful supervision are:

  1. Placing the child in or failing to remove a child from a situation that a reasonable person would realize:
  2. requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities; and
  3. that results in bodily injury or a substantial risk of immediate harm to the child; placing a child in or
  4. failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or
  5. placing a child in or failing to remove the child from a situation in which the child would be exposed to sexual abuse committed against another child.

Texas CPS Drug Policy

The following is policy regarding drug testing from the CPS hand book:

Refusal to Test

“When testing is appropriate under 1920 Substance Abuse Testing, but the client refuses to take a drug test, the caseworker must document the refusal to be tested.

If a parent refuses to take a drug test or refuses to allow a child who is an alleged perpetrator to be tested, the caseworker consults with the supervisor in a staffing meeting. The supervisor may recommend legal intervention, if the evidence raises concern for the child's safety.

For cases under court jurisdiction, the caseworker must notify the judge and attorneys about the client's refusal to test.”

Positive Result

“The caseworker must assess a positive drug test result in relationship to the child's safety and risk. The result must be discussed with the parent in a timely manner.

If a parent with a positive drug result is not engaged in substance abuse treatment and is actively parenting a child, the caseworker refers the parent to:

  1. a provider of outreach, screening, assessment, and referral (OSAR) services or
  2. a provider of substance abuse treatment.

The threshold that makes a referral appropriate is based on the definition of a child not being safe. That is, a child is not safe when:

  1. threats or dangers exist in the family that are related to substance use;
  2. the child is vulnerable to such threats; and
  3. the parent who is using substances does not have sufficient protective capacities to manage or control threats.”

Thus, if you test positive, and refuse to sign the safety plan, there is a high chance a lawsuit to remove your children will follow.

What are your rights?

  1. You have the right to talk to your CPS caseworker. Communications with the CPS caseworker are not confidential and can come out in court.
  2. If CPS has filed a lawsuit against you for conservatorship of your child and/or termination of your parental rights, you have the right to a court appointed attorney if you cannot afford one.
  3. You have the right to visit with their child unless the Court has ordered no visitation.
  4. You have the right to be informed of their child’s current medical condition and any change of placement; but not the location of the placement.
  5. You have the right to deny the allegations made by CPS
  6. You have the right to be notified of all hearings and permanency conferences or family group conferences.
  7. You have the right to an interpreter if you do not understand English.
  8. You also have the right to a jury trial.

Once the service plan expires, you have the right to bring your child home unless:

  1. the service plan is renewed, or
  2. there is a court order (signed by a judge) saying that you can’t.

What You Should Know if CPS Targets You?

  1. Take the accusation seriously. It doesn’t matter if you think the allegation is unreasonable or stupid. CPS is serious, and will presume that you are guilty as accused. They may not say that they are there to take your children, but they very well may.
  2. Do not talk. Do not try to explain it is important that you not talk to anyone but your attorney.
  3. You must find an attorney who has experience in fighting CPS, as soon as you realize your family is being investigated.
  4. Be polite
  5. Never let any government agent in your home unless he or she has a warrant or order issued by a court.
  6. If the accusation is one of physical abuse, have your doctor immediately give your child a thorough physical exam. Ask your doctor to write a letter stating that no bruises, marks, or health concerns were found on the child that would create suspicion of child abuse or neglect.

How long can my CPS case stay open?

Deadline

Event

Day 1

Removal of Child / Emergency Hearing

Day 14

After Removal: Adversary Hearing

Day 60

Status Hearing

Day 180

Initial Permanency Hearing

Day 270

Permanency Hearing

Day 360

Trial, Dismissal, or Extension of Case

Day 540

Dismiss, Return, or Trial

Day 720

Dismiss or Trial

Without the agreement, the longest a case will stay open is about 18 months from the time of removal.

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Law Office of Bryan Fagan | Houston, Texas CPS defense Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding CPS, it's important to speak with one of our Houston, TX CPS defense Lawyers right away to protect your rights.

Our CPS defense lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles CPS defense cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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