In the eyes of CPS, it may become necessary for your child to be removed as a part of your Child Protective Services case. This is never something that a parent wants to encounter, but it may be the reality of your specific case. You should not freeze up or isolate yourself or not participate in the process of this happens to you. Rather, you need to take concerted action and have a plan to counter the removal of your child. Keep in mind that CPS will have a plan, and it may not be a plan that you like. The only way for you to counteract their plan is for you to have one of your own.
In today’s blog post from the Law Office of Bryan Fagan, I am going to share with you what I believe to be a well thought out impractical bit of planning for you as you prepare for a CPS case of your own. This does not mean that my plan and the ideas that I have will coincide perfectly with your circumstances. It does mean that the information I’m going to provide you with today should hopefully allow you to begin thinking about planning how you want to approach this CPS case.
The most difficult part of the CPS case is that you will never be the person who files the case, and the outcome of the case can be catastrophic in terms of your future relationship with your child. As I have done throughout the past few days on this blog, it bears repeating that the result of a CPS case could be that your parental rights are terminated. To avoid an outcome like that, you absolutely need to have a plan and be ready to execute that plan during the course of your case. No one will tell you that this is something that you want to do, but for the future of your relationship with your child, it is something that you must do. If your case gets to the point where Child Protective Services needs to remove your child from your home, then you have some decisions to make.
The first decision is regarding whether or not you have someone in your life who can step in as a caregiver for your child temporarily. What family members, friends, or people of nature do you have any support circle who would be willing to step up to the plate and house your children for 4 certain periods of time during your CPS case? Yeah, I’d say entities and information of these people can be made available two CPS at the outside of your case so that if your child is removed from your home, the agency will have these people available to turn to for assistance.
Keep in mind that CPS will ultimately determine where your child will reside if removal is necessary. CPS will likely interview the people you provide them with, run background in criminal history checks on H, and then perform home inspections for each residence that is a possible placement for your child. If any of the persons you provide them with are suitable, your child may be placed there. Additionally, if your case goes into family-based safety services, then you have the ability to voluntarily allow your child to reside with one of these relatives or friends while you take the steps necessary to bring your home up to a level where a risk of harm to your child is low.
While you probably will not have much time to prepare for a CPS case, you can take the time to think about in advance people in your life who would be qualified to serve as a temporary caregiver for your child. The more people you can come up with and provide to CPS, the better your case will be. Not only will it give you Peace of Mind from having your child be able to stay with a relative rather than with a foster family during your case, but it will also improve the life of your children. Imagine your children going to stay with strangers during your case and how disheartening that could be for them. Now, imagine how much better they will feel if they can stay with a grandparent, uncle, aunt, or even a close family friend.
This is the reality of a CPS case. So much of the case is out of your control regarding the steps in the process, the services you may be required to complete, and even how long the case lasts. However, one of the things you have, let’s say it concerns where your children may live should they need to be removed from your home during the case. Do not take this responsibility lightly and instead focus on improving your children’s lives in both the short and long term.
What happens when CPS removes your child from your home?
The question of what happens when your child is removed from your home as the result of a CPS investigation is a question best asked long before the removal actually occurs. I say this because a removal tends to happen very quickly, and once it gets going, you likely will have little say in the process. A CPS caseworker, or more likely multiple CPS caseworkers, will show up to your home with a court order and a police officer to supervise, and you will be allowed to help your child pack quit and then quickly say,, goodbye. Your child will be taken to a location the details of which you may or may not be told. This is the level of advanced warning that the law requires parents began in Texas.
So, with that said, you need to be sure that You know some details heading into the process, not so much for you to be able to stop what is ongoing because that is something I would not recommend. Once Child Protective Services has a court order in place, it would be foolish for you to try to intercede and prevent your child from being taken from your home. That does not mean that you should give up on your child or have your child returned here home, but it should mean that you know when and when not to pick a battle that you can win. In this scenario, trying to intercede and even becoming aggressive with CPS or law enforcement will only make matters worse.
If the Department of Family and Protective Services did not believe that your child is in immediate danger, they would likely request through a suit affecting the parent-child relationship to be named as the temporary managing conservator of your child. Since your case would not then be an emergency matter, you would be provided with notice overhearing. You would have the opportunity to hire an attorney and present evidence showing why your child should not be removed from the home. At this stage, an attorney would likely not be made available to you by a court if you cannot afford to pay for one on your own.
If you are planning on contesting the removal of your child, then your position would be that you disagree with the court order granting temporary managing conservatorship with the Department of Family and Protective Services. You can request that a full-fledged hearing on the matter be held in which both sides can present evidence to back up their case in positions. It is a high burden for the Department of Family Protective Services to meet to justify removing a child from your home. In the event they fail to meet this burden, your child should be returned home to you. On the other hand, if the burden is meant, then temporary managing conservatorship of your child will be placed in the state. A temporary order will be issued that allows them to make decisions for your child soon.
What is the legal burden that the state of Texas has to meet to be named temporary managing conservator of your child?
As I mentioned a moment ago, the state of Texas must meet a fairly substantial burden to be named as temporary managing conservator of your child. The first thing that a child Protective Services court judge would look for is a danger to the physical health or safety caused by an act or failure to act on your part or any person entitled to possession of your child. Additionally, the judge could base their removal of your child and placement in the temporary care of CPS on an urgent need for protection that required immediate removal of your child and that reasonable efforts were made to eliminate the removal. Finally, despite reasonable efforts to eliminate the need for removal, there was a substantial risk of continuing danger to your child if your child was allowed to remain in your home. These definitions are pulled straight from the Texas family code, section 262.
CPS employees groups of lawyers who will represent the interests of the state agency in court. That attorney’s job is to represent the Department of Family Protective Services and provide evidence to support the request to be named as temporary managing conservator of your child. The types of evidence frequently presented in hearing are video and audio recordings, witness testimony, and documents. Likewise, your attorney may also put on evidence as to why the court should not allow the Department of family and Protective Services to be named the temporary managing conservator of your child.
You may ask relatives to be present for the hearing to present testimony if called upon by a judge. Your attorney should speak to your relative ahead of time to prepare them for testimony and provide a preview of the type of questions that an attorney for CPS may ask them upon cross-examination. It would help if you were sure that this relative would provide unique testimony that is not duplicative or what you have already testified to, or what other evidence has already tended to show.
Conservatorship, in general, refers to the rights and duties that a person has in connection with another person. Typically we in the world of family law reference conservatorships with a parent’s conservatorships rights over their children. In other situations, an adult may have conservatorship rights over another adult who is either mentally or physically incapacitated and incapable of making decisions for themselves. CPS may request conservatorship of your child via a suit affecting the parent-child relationship. If a court were to grant the state with conservatorships rights over your child, they would have the ability to determine where a child lives and where they go to school.
Could CPS request to have your parental rights terminated at this point?
When and if the Department of Family Protective Services requests to be named the temporary managing conservator of your child, they must do so through a petition. A petition is a legal document in which a party asks the court for a remedy 4 determination of some sort. In the case of your family and CPS, the agency would be petitioning the court to be named as a decision-maker for your child temporarily.
However, it could be that the state moves forward with asking to have your parental rights be terminated outright. Terminating your parental rights means that you would not hold any decision-making capabilities for your child once your parental rights are terminated. Basically, you would hold no rights, dear child, moving forward just as I hold no rights to your child. Keep in mind that just because CPS has requested that your parental rights be terminated does not mean that the court will do so without first allowing you to speak in your own defense. Typically, if you participated in the CPS case and agree to make necessary changes in your life, then you will be able to maintain your parental rights and have your child returned home to you.
The role of an attorney ad litem in your CPS case
At the initial hearing after your child is removed from your home, the court will appoint an attorney ad litem to represent your child’s interests. Keep in mind that the court will deem that your interests do not always coincide with your child’s best interests. As a result, the court will seek to appoint an attorney to represent your child’s interests solely and communicate to the court what your child wants as far as reunification with you.
In Texas, a Guardian ad litem may fill a similar role to the attorney ad litem, in fact, be the same person. If a licensed attorney does not fill this role within the context of your case, then it is very likely that a member of the group court-appointed special advocates (CASA) will act as a Guardian ad litem for your child. Any adult previously approved by the court that is shown to be competent to fill the role may do so in any event.
Throughout the case, the Guardian ad litem or attorney at Litem will make reports to the judge about your child’s health, safety, welfare, and beliefs about what is invest interests. You can expect the Guardian ad litem to be present in court for all hearings, and this person will have the ability to review school records and medical records. The Guardian ad litem will have permission from the court to meet with your child outside of your presence without your consent.
As you can see, your relatives can play a central and important role in your child’s CPS case. This means that it is important to foster close relationships with the people in your life not only for emotional support but for practical support within the confines of the case. It can be uncomfortable to discuss private matters with family, but doing so may allow you all to have an even better relationship with your family members. The level of trust that I have seen clients in their relatives show in one another during difficult circumstances is truly heartening.
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Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
