If your child has been removed from your care, then a judge will hold hearings to discuss the merits of your child's removal and your child's ability to be returned to your care. You will have an opportunity to hire your attorney to represent your interests. It is recommended that our attorneys have experience in representing clients in CPS cases. If you cannot afford to hire an attorney on your own, the court will appoint an attorney to represent you. However, it would help if you first had your income scrutinized by the court.
Likewise, Child Protective Services (CPS) will have an attorney in court to represent their interests. The role of this attorney is to justify the continued removal of your child from your home and their maintenance of conservatorship rights over your child. Depending upon where you live in Texas, the role of the CPS attorney may be filled by a County Attorney or by a Regional Attorney for CPS. The job title of the attorney does not matter; their role will be the same no matter what.
The role of an attorney ad litem for your child
An Attorney Ad Litem represents your child's interests in a CPS case. The court will appoint this attorney. While you may be thinking to yourself- hold on a second, I should be representing my child's interests- the state of Texas believes that because what is best for your child may not be best for you and vice versa, an independent attorney needs to be appointed to represent your child. Their representation of your child will continue until the court allows them to step down from their position.
The role of a guardian ad litem for your child
The Guardian Ad Litem for your child will also be appointed by the court to help the judge learn more about your child and what is actually in their best interests to permanently find them a place to reside. The Guardian ad litem typically does this by conducting interviews and speaking to your child off the record. The judge will ask the guardian ad litem for a recommendation that the judge can then use to consider what is in your child's best interests.
The guardian ad litem is not limited to interviewing just your child but can also speak to you and anyone involved in your cases, like family members, school personnel, and neighbors. Periodically the guardian ad litem will update the court on its work by filing reports detailing the people they have spoken to, the content of the interviews, and any recommendations based on this new information that has been ascertained. This is a crucial role for the guardian ad litem to play because they will get to know your child on a much deeper level than the judge. The guardian ad litem essentially acts as the eyes and ears of the judge outside of the four walls of the courtroom.
Depending upon your child's age, the attorney ad litem and the guardian ad litem may end up being the same person. Younger children, toddlers, and infants typically have one person assigned by the judge to fill both of these critical roles. The guardian ad litem does not have to be an attorney but often is.
When an attorney is not assigned to this role, a court-appointed special advocate (CASA) volunteer often steps in. This person has undergone special training from judges and attorneys in your area that will serve on a volunteer basis to fulfill the responsibilities of a guardian ad litem. These folks do everything I outlined above- conducting interviews, advising the court, and sending periodic updates to the judge- but are not attorneys.
What is mediation?
Within the life of your child's CPS case, you and the other parties to the case will have an opportunity to attend something called mediation. A mediator is a person who runs the mediation session. Mediation is a formalized settlement process where all the parties to your case attend a meeting in which the purpose is to determine whether or not a settlement can be reached in your child's case. The mediator assists by attempting to help the parties work out any problems that may exist and to attempt to provide context on what a judge is likely to do if the case should proceed to a trial.
A key point to understand about the mediator is that they will be a neutral, independent person and will not have any "skin" in the game. They will not be there to defend any one party or offer arguments on behalf of any party, either. Their role is to help facilitate an agreement, but ultimately, it requires each person involved to agree to the settlement being worked on. The mediator will not attend court to testify for or against any party. What is discussed with the mediator can be confidential if you ask the mediator to keep what is said between you and them. Speaking of confidentiality…
The importance of confidentiality in a CPS case
It should not be lost on you that by beginning an investigation into you, your child, and your family, CPS is collecting a great deal of information about all of you and then transmitting that information into writing that will be kept in CPS records for years to come. Much of this information is the sort that I'm sure you would like to remain private and not part of a public record. This can range from information about the allegations against you or your spouse to birthdates, social security numbers, etc. Remember that just because this information is private and sensitive does not mean that CPS cannot ask you for it.
Fortunately for all citizens of Texas, there is only so much that CPS has the right to access as far as sensitive information, the type of which I outlined in the prior paragraph. If you share information with your attorney, that information is subject to the attorney-client privilege and does not need to be shared with a CPS employee if they speak to your attorney about it.
What is not considered to be confidential information that is shared between you and your attorney
If we take the general premise that any information that you share with your attorney is presumed to be confidential and apply it to a CPS case, what then can we say is not subject to this presumption?
Most importantly, if your attorney learns from you information that details abuse or neglect of a child, your attorney must come forward with this information to CPS. They may do so anonymously. A report must even be made if your attorney believes that abuse or neglect of a child is only likely to happen and has not yet occurred.
Finally, suppose you share information with your attorney to help stop a crime from being committed. In that case, that information must also be shared with the authorities- be they law enforcement or CPS caseworkers.
Your lawyer will speak to you about what you want to keep private and what you are willing to share with CPS. Suppose you are doing well in therapy sessions, alcoholics anonymous, or other rehabilitative aspects of your case. In that case, it may be to your advantage to have your attorney share this information with CPS rather than keep it private.
More on confidentiality is to be posted tomorrow in our blog
On behalf of the attorneys with the Law Office of Bryan Fagan, PLLC, I thank you for your time and attention as we discuss this critical topic. Come back tomorrow to learn more about the role of confidentiality in your CPS case.
In the meantime, if you have questions related to CPS cases or any other subject in family law, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. One of our licensed family law attorneys can meet with you in a free-of-charge consultation. We can answer your questions and help you sort out the issues in your particular case.
