The requirement in Texas is for a Child Protective Services case to complete itself within one year of an investigation having begun. To a parent like yourself, it may feel like this is an extremely long time to wait. Having your parental rights and the future of your relationship with your child hang in the balance while the legal process plays out is difficult. However, all the hearings, meetings, and visits with your child in efforts to improve your parenting come down to a single hearing at the end of your case known as a final hearing.
When you attend a final hearing, the goal of the process is to arrive at final orders that can be entered in your case. The main thrust of those final orders will be what is going to happen with your child permanently once the CPS case has completed itself. This will resolve all the outstanding issues in the case and arrive at an outcome that is based on the best interest of your child.
Once the Department of Family and Protective Services becomes the temporary managing conservator of your child, a case involving that child must be resolved within one year. The requirement is that unless a court has begun a trial on the merits, otherwise known as a final hearing, or granted an extension then the first Monday after the first anniversary of the date the court issued temporary orders is also the date that the court needs to dismiss the suit affecting the parent-child relationship which was filed by CPS.
When there are extraordinary circumstances at play then CPS can decide to extend the dismissal date of your case. This extension cannot exceed 180 days after one year. Has come to an end. Some requirements must be satisfied when it comes to this extension. First, a court must schedule a new date for your case to be dismissed if a trial or final hearing has not occurred.
Can your child be returned to your home?
At any point in your case, the court can decide to return your child to you in a monitored return. In this situation, CPS would remain on as the temporary managing conservator of your child. This monitored return of your child could not last for a period longer than 180 days. If your child is placed with you under a monitored return the court might end up needing to remove your child for any reason. Once your child is removed from the home the court would need to schedule a new date for dismissal of your case.
What happens at a final hearing?
The court has options before it when it comes to a final hearing. The first option is to enter a final decree of conservatorship that allows your child to be returned to you. You would once again be named as managing conservator of your child in CPS and would no longer hold that distinction. On the other hand, a relative of yours could be named as a permanent managing conservator while you are named as a possessory conservator. In this situation, your parental rights would not be terminated but you would also not be named as the permanent conservator on a primary basis. This would, however, and CPS involvement in your life.
The other option is that the court could determine that it is in the best interest of your child for CPS to continue as the permanent managing conservator of him or her. This may happen in situations where you have not followed through with all the requirements necessary to allow you to become the permanent managing conservator of your child.
Despite what some people believe, CPS has the burden of proof in a final hearing. The burden is that CPS must show that it is in the best interests of your child that your parental rights should be terminated or that CPS or someone else should be named as the managing conservator of your child. When CPS tends to prove to a court that your parental rights need to be terminated then it must be able to prove by clear and convincing evidence at least one ground for termination. Clear and convincing evidence means that the fact finder must have a firm belief in the truth of the case presented by CPS.
An inability to care for your child is one of the most common reasons why CPS moves to terminate parental rights in a final hearing for a CPS case. For example, CPS could attempt to argue that because of a mental or emotional illness, you are unable to provide for the physical, emotional, and mental needs of your child. The other key piece of information here is that it must be shown that the mental or emotional illness is likely to continue and is not temporary. So long as CPS has been the primary conservator of your child for at least six months before the final hearing then there is an opportunity to have your parental rights terminated.
What factors are considered when it comes to the best interest of your child?
The desires of your child will be assessed when making a best-interest determination. However, those desires will be considered alongside their age and maturity level. For instance, the desires of a 14-year-old will most likely matter to a court more than the desires of a four-year-old. The emotional and physical needs of your child matter as well. Next, if your child is in any kind of danger then that would be considered relative to a permanent conservatorship being named. Your plans for your child now and in the future are going to be scrutinized by the court. If you are not able to speak to your plans for your child, then you will struggle in this area.
What are some of the presumptions which apply to a final hearing?
The judge in your case will go into the final hearing presuming that it is in the best interest of your child to appoint you as the primary managing conservator of him or her. However, the evidence presented in your hearing makes us overcome that presumption. When it comes to the best interest of your child, we have talked about some of the factors that a court will consider. Essentially, the physical health and emotional development of your child will be at the forefront when it comes to considering what is in his or her best interests. As a rule, when there is a history of family violence present in the home then this presumption will no longer apply.
Unfortunately, domestic violence or sexual abuse can be an issue in a CPS case. When a court needs to determine whether to appoint you as the sole or joint managing conservator of your child then it will need to consider any evidence of intentional physical abuse or sexual abuse that you committed. Those crimes could have been committed against your child, your spouse another child in the family not involved in the CPS case, or your child’s parent.
If you are not appointed as a joint managing or sole conservator of your child, then you will be appointed as the possessory conservator. The exception to this is if the court finds that it is not in the best interest of your child that you have possession and access to him or her. Again, family violence or sexual abuse will be considered in determining the appointment of you or another parent as a possessory conservator. This is especially true when there is a history of family violence within the past two years before the CPS case was initiated.
What happens when CPS is named as the permanent managing conservator of your child?
If the court rules that CPS should be named as the permanent managing conservator of your child and your parental rights have not been terminated, then some factors will need to be considered by the court in this instance. CPS will not be named as the permanent managing conservator of your child in situations where your child will reach 18 years of age and not less than three years. If your child is over the age of 12 and has expressed a desire to not have her parental rights terminated and does not want to be adopted, then that will also factor into their decision.
How can a non-parent be named as the managing conservator of your child?
There are additional hurdles to clear if a non-parent is to be appointed as the managing conservator of your child in a final hearing. CPS needs to be able to provide the non-parent with a clear-cut explanation about the difference between being a conservator of a child and what it means to be an adoptive parent of a child. Specifically, by becoming a conservator of the child there are limited rights and duties as compared to being a parent.
One of the more complicated aspects of a case like this is that you may be able to request visitation time with your child even though you are not the managing conservator of him or her. In some instances, this can occur without much of a problem. For example, if you are appointed as a possessory conservator of your child but a family member is appointed as the managing conservator of your child then you may have a good relationship with him or her. This will make facilitating visitation easier.
What are the details associated with the termination of parental rights?
CPS has a high burden of proof when it comes to potentially terminating your parental rights. First and foremost, a judge would need to find by clearing convincing evidence that there is a ground for termination in your case and that termination of your relationship with your child is in his or her best interests. We discussed earlier that clear and convincing evidence means that there must be a firm belief that the best interest of your child or not going to be met with you as his or her parent. There are voluntary terminations of parental rights in Texas, but many cases are involuntary.
What are the grounds for termination of parental rights in Texas?
If you look at the Texas Family Code, there are 21 grounds for termination of the parent-child relationship. CPS must allege the ground for termination in their petition to terminate your parental rights. This will allow you to prepare for the final hearing so that you can counteract this allegation made against you. One of the more common grounds for the termination of parental rights is when a parent abandons their child who is in the care of CPS. A parent could simply lose track or even lose interest in caring for their child when he or she is no longer in their home. Evidence of abandonment could be that the parent stops paying temporary child support, ignores contact attempts by CPS, or fails to show up to scheduled visitation periods.
Endangering the child is another ground for termination of parental rights. There are many situations in which a parent can endanger a child’s well-being. This may have also been the ground for removal as cited by CPS. When your child is in physical danger due to your actions as a parent, the actions of another adult living in the house, or even by a defect that has not been remedied in your home then this could be a ground for termination of your parental rights. You will likely be aware of the specific factors that have caused CPS to believe that you are endangering your child by the time of the final hearing. A court would look to whether you have taken any steps to remedy the situation by the time your final hearing comes around.
Why is it important to have representation in a CPS final hearing?
As you can tell, there are certainly high stakes involved when it comes to a CPS case. From the beginning of your case, it is possible that your child could be removed from your home and your parental rights could be in danger. This is not to say that every single CPS case results in a parent losing their parental rights. However, there is a possibility that these outcomes could influence your case and be a part of the proceedings. In that case, there is simply too much at risk and too much in the way of factors to consider for you to forgo representation. When we look at ways for you to better ensure a good outcome for you and your child, hiring an attorney who has experience in these matters would be at the top of a concerned parent’s list.
First, CPS does not operate like an opposing party in a divorce or even in a child custody case. This means that it is not always easy for you to get a hold of the agency to speak to them about matters related to your children. You may have limited opportunities to reach out to CPS to inform them of updates in your case or to ask questions. If you are not diligent about contacting them or simply do not have the time to always do so on your own, then you will be at a disadvantage when it comes to communication. Having an experienced family law attorney to guide you during your case is vitally important given that an attorney can and will contact CPS on your behalf frequently so that updates can be provided, and questions can be asked in a timely fashion.
What you will also find in a CPS case is that the persons involved from a legal standpoint such as the opposing attorney, attorney ad litem, and even the court-appointed special advocate have likely worked with the attorney before on other cases. What this means is that your attorney will have a preexisting relationship with the other parties involved. This will help facilitate discussion and help you make sure that you have a voice in the matters involved. When you are a parent who is simply trying to do their best to keep up with the pace of a family law case involving CPS you may find that it is easier said than done to do so. Having an experienced family law attorney to assist you means that you can better communicate on your behalf and behalf of your child with the agency and with the court.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family circumstances may be impacted by the filing of a divorce or child custody lawsuit.