This past year, the Texas Legislature passed a law that allows parents to deny Child Protective Services (CPS) entry into their homes. A major reason why this law has been passed has to do with a sentiment that CPS can act aggressively during their investigations. As such, the legislature sought to remedy this issue.
In today’s blog post from the Law Office of Bryan Fagan, we are going to seek out additional information on this law and what it means to your family. Being the subject of a CPS investigation is a serious matter. Learning as much as you can helps immensely for you to protect your child and yourself.
What is the new law regarding CPS “Miranda Rights”
Most of us are familiar with the Miranda Rights that are read to a person upon their arrest. A law enforcement officer must inform you are under arrest and have the constitutional right to remain silent. Furthermore, anything you say can and will be used against you in a court of law. What you blurt out to the officer upon your arrest has consequences.
Texas House Bill 730 requires a CPS employee to inform you, your co-parent, or any adult who answers your door about their rights in a CPS investigation. Here is how it works on a practical level. Once a CPS investigator approaches your door upon first contact, she must notify you of the specific allegations being made against you in their report. The process involved in a CPS investigation must be spelled out, as well.
Here is what is important for parents like you to understand. Not only must CPS inform you of these things in writing, but they must also inform you of your right to deny them access to your home. Put yourself in this position. You are caught off guard by CPS being present in the home. The person from CPS is assertive of their right to be there. You don’t want to get on the wrong side of the CPS employee. So, out of courtesy and fear, you allow her to enter your home. This is a major mistake in many cases.
Informing you of your rights
Being caught off guard is something that CPS (and law enforcement, for that matter) uses to their advantage. If they ask your permission to enter and you permit them, it is not a defense to come back and say that you were nervous. Their entry was legal based on your permitting them. The thought with this law is that by informing you of your rights in writing you are better able to make informed decisions about what to do.
Also, a part of this law is the need for CPS to inform you of your right to be represented by counsel. Indeed, it is unrealistic to expect that you will have an attorney on standby in the event CPS comes to speak to you at your house. By informing you of your right to hire a lawyer you are allowed to do so.
Denying CPS access to your home and allowing you to hire an attorney are two wins in one for parents. Reaching out to an attorney gives you more time to figure out what is going on in your case. It also allows you an opportunity to develop a strategy to be implemented within the case. Working with an attorney with the Law Office of Bryan Fagan better positions you to do both of these things. Contact us today for a free-of-charge consultation with one of our licensed family law attorneys.
Balancing protection and parental rights
What the legislature attempted to do in passing this law is to balance two competing interests in CPS cases. On the one hand, you have the parental rights of parents like you. These rights are not only important to parents but to Americans in general. You do not have to open the door or allow entry to your house if a law enforcement officer asks. The same is true of CPS employees. Many people do not know this and as a result, CPS was able to gain entry to homes that they otherwise would not have been able to enter.
On the other side of the equation, we have the objective of CPS of keeping kids safe. Investigations lead CPS in all sorts of directions as far as child safety is concerned. Many children are in harm’s way and CPS stands as a last line of defense. With that said, CPS does need to be able to gain access to children and their homes in emergencies.
While no law is perfectly able to strike a balance in every situation this law attempts to do just that. Parents are seen to have a disadvantage when it comes to these situations. CPS comes into a home environment on the offensive. Parents are on defense when it comes to the house and allowing access. This new law seeks to rebalance the situation in favor of parents.
CPS home searches
CPS needs a court order to search your home. However, once you allow entry into your home then CPS is free to look for information that substantiates the allegations made in the CPS report. You can withdraw permission to enter your home at any time but by then CPS is already inside your home. The intimidation factor is real. CPS does not need to be aggressive about any of this. All they do is give you a reasonable concern for the removal of your child. From there, you are likely to grant them access to avoid that fate.
Limiting the impact of child safety plans
House Bill 730 also limits safety plans created during a C{S investigation. When a CPS caseworker provides you with an option to leave your child with a friend or family member that seems like a better option than foster care. This option is couched as a better option by CPS but amounts to a formal removal of your child from your home. Rather than coercing parents to place their kids with family members, HB 730 allows your child to remain in your home during an investigation.
Nothing new under the law- only notifications for parents
What does the new law create, as far as new laws? The answer? Nothing. These are not new laws one way or the other. Rather, parents like you are in a better position now to understand the laws that exist to help them, potentially. Rather than being able to feel like your hand is being forced the new law allows for you to understand your rights.
CPS has updated its handbook because of the passage of this new law. Caseworkers are being trained to provide parents and guardians with a listing of their rights under Texas law. This includes the right to deny entry to a CPS caseworker lacking a court order. Additionally, the right to not speak to an investigator without an attorney being present is mentioned. Appeal options are listed if CPS finds that abuse or neglect of a child has occurred.
Again, this is where an attorney serves a major purpose on behalf of your family. When you have an attorney, you trust in the case that opens several doors for your family. Contact the Law Office of Bryan Fagan today for a free-of-charge consultation to discuss these CPS circumstances.
More on Miranda Rights and CPS cases
By this time, we can all agree that CPS uses ignorance of the law and fear of child removal to convince parents to allow entry into their homes. This does not have to be you. Without notifying you of your rights there is a decent chance you don’t know what those rights are. The same argument was made for decades until the Miranda case went before the Supreme Court. While the Supreme Court of the US nor Texas did anything about parental rights in a CPS case the legislature has.
The Miranda Warning or Miranda Rights are something that everyone is familiar with. We can recite this mini-speech in our sleep. That is a sign that the Miranda Warning has been effective. What other legal rights can you recall off the top of your head using perfect legal jargon? In the forty-plus years of the Miranda Warnings being read, there is no doubt they have caused people to think twice about speaking when being placed under arrest.
Think about what we are talking about now in connection with CPS investigations. How often do you think that well-meaning parents have blurted something out inadvertently that they regret? A lot, in my experience. Parents are fearful about having their children removed from their homes. Parents also think that being kind to a CPS investigator will bring about a quicker end to the investigation. This is not true.
Parents need to focus on the well-being of their children
A criminal case is bad enough. A CPS case carries with it even more challenges. For instance, think about the future of your child without you. In a criminal case, you may lose out on parenting time but in many cases your parental rights are unaffected. Whereas in a CPS case, your parental rights are front and center as far as being altered. Losing your parental rights is typically not something you can appeal, either. Once your parental rights are stripped that’s all there is to say about that.
Your children are left to the care of the government. The same people we all complain about when it’s time to get through airport security or have our driver’s licenses renewed. Next thing you know it’s time these are the folks caring for your child. Not exactly an ability to show the love and tenderness of a mother or father. Something to avoid is having the government raise your child- even temporarily.
Call this new law what you will. CPS Miranda rights are needed. Helping to provide children an opportunity to remain at home (when safe) and helping to allow parents to put their best foot forward. These are two of the ways that this new law can seriously help families in Texas. To learn more about how to help your family in a CPS case contact the Law Office of Bryan Fagan. We have the experience you need to go through a CPS case with success and intentionality.
What do these CPS Miranda Rights look like in the real world?
So far in today’s blog post, we have been discussing this topic in theory. Let’s walk through a situation that mirrors something closely resembling your own. Suppose that you are involved in a CPS investigation as a parent. Formerly, CPS gives you a handout that is not well written and is very jumbled up. You would read through it but to many people, it made very little sense.
Now that you are up to speed on what this new law does in theory, here is what it accomplishes for you in practice. When a CPS investigator comes up to you at the outset of the investigation it cannot be said that they hide the ball anymore. Rather, their name, who they work for, and a list of your rights in their investigation are given to you in plain English. No more guessing games or tricky wording.
What is included in the CPS Miranda rights?
First, what the known allegations are that are being investigated are presented in this statement of rights. This means that you will be aware of the allegations made against you. For many parents who find themselves in a CPS investigation, this is not something that is always made known by CPS. Many times, parents would have to request copies of documents that are sent out internally within CPS to find out what is being alleged against them. This is no longer the case.
Next, the rights that you as a parent have in these investigations are provided to you initially. This includes the right to refuse a CPS employee entry into your home. You also have the right to hire an attorney at any point during the process. Getting back to the central part of this topic from today it is apparent that many parents in your position had no idea about their right to hire a lawyer or refuse entry to the home.
CPS also has a specific process that must be followed during an investigation. These policies are not posted online. If you were able to find any internal documents from CPS online, then you still could not be assured that the process followed by CPS will be what you have read. As a result, CPS now provides you with a specific overview of the procedures for conducting further investigation into your family.
Additional elements of CPS Miranda rights
As a parent, you have a right to file a complaint with the Department of family and Protective Services if you believe that an investigator has acted inappropriately. What constitutes inappropriate behavior is not necessarily provided in this notice. However, you do have the right to make a complaint in good faith against the CPS employee.
Finally, CPS explains to you that anything you say to them during an investigation can be used against you both in a criminal case and in the CPS case itself. This includes but is not limited to temporarily or permanently removing your child from your home. It also includes an ability to use these statements against you and a potential parental rights termination case.
How to conduct yourself during a CPS investigation
Now that you have specific knowledge of how CPS conducts itself during an investigation, we can talk more about how you should behave during the investigation itself. First off, do not ignore CPS. The matter does not go away by itself without you doing something to participate in the investigation. Refusing to ever speak to CPS will usually end up hurting you. Speak with an experienced attorney before making any decisions about participating in one of their investigations.
Drug testing may be requested of you in your first interaction with them. The CPS caseworker will make it seem like this is not a big deal. Or even that the drug test wouldn’t be used in a court case. This is not the case at all. Rather, you need to refuse drug tests. If CPS wants to drug test you they may do so with an appropriate order from the court. Until then, declined to take a drug test.
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. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
