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Does DFPS need a court order to remove a child?

In a Texas Child Protective Services case, a development that can occur is the removal of your child from your home. The first thing we need to talk about regarding something like this is how it is natural to be fearful, apprehensive, and angry at the process, yourself, and the state of Texas at this happens. Nobody is expecting you to be completely rational or objective about the reasons why your child was removed from your care. Putting myself as a parent into the shoes of someone who has just lost their child for a temporary basis makes my stomach hurt. If you are going through these types of circumstances, then I want you to know that there are ways for you to write the ship and regain custody of your child.

It is not easy to do so, however. They say that time heals all wounds but, in this regard, time may not be able to heal the scars of a CPS case all on its own. Rather, you will need to meet certain qualifications and fulfill certain duties as outlined in your safety plan. A safety plan outlines what steps you need to take into consideration to have your child returned to your home in a safe environment. The steps that you must accomplish could relate to the completion of counseling or therapy, fixing a defect or problem in your home, or having dangerous people leave your home.

If CPS determines areas in immediate risk of harm presented to your child by remaining in your home, then it can take steps to immediately remove your child. If this is the case, then CPS will keep your child in their custody at least until an emergency hearing can be held with the judge where they seek court approval to maintain temporary managing conservatorship of your child. In that emergency hearing, you would be able to attend and have the assistance of an attorney if can hire in time. a hearing of this sort must be held within three days of your child being removed on an emergency basis.

A judge would then decide in this hearing whether or not there is substantial enough evidence to allow the state of Texas to retain temporary managing conservatorship rights over your child. If the judge believes that you, your spouse another person living in your household, or anything else in your home presents a risk of harm to your child then the judge would allow CPS to retain custody of your child. Note that it is not a given that CPS will be able to retain custody. In fact, in some instances, the problem in your home may not have been sufficient enough for CPS to remove your child in the 1st place and he or she will be returned to you after this hearing.

However, when the risk of harm to your child is significant enough then a judge would not hesitate to allow CPS to retain custody of your child. How long CPS will be able to remain in the custody of your child depends on the circumstances of your case and on your ability to follow through on the safety and parenting plans that you will eventually create with CPS. CPS must allow you an opportunity to provide the names and information of friends and family members who would be able to house your child temporarily. This friend or family member Would have to undergo a home study and background check to be approved as a placement for your child.

What this should tell you is that you need to be able to have an updated list throughout this process that can be utilized by the court to determine alternative placement locations for your child. This is 1 potential way for you to make lemonade out of lemons: to be able to have some direct say over where your child stays during the CPS case is no small thing. Consider that the alternative would be to allow CPS to place your child into foster care or into an alternative living situation that you have no control over. With this in mind, I recommend that you reach out to friends and family members early in the process to talk to them about your situation and see if they will be willing to house your child for however long the case takes.

When do you get to go before a judge?

So far in today's blog posts, we have discussed what can happen if your child is removed from your home on an emergency basis. As we saw, a judge would take up your matter on an emergency basis about three days after your child is removed. However, you may be curious as to what will happen if CPS does believe your child is at risk of harm at home but does not believe there are emergency circumstances in place to justify an immediate removal without a court order. When would you be able to go before a judge in a circumstance like this?

The first hearing that you would have the option of moving forward to talk to the judge would be an initial hearing. In this hearing, CPS could be named as the temporary managing conservator of your child where temporary orders could be issued going over things like conservatorships, Visitation, child support, and things of that nature. If all of this occurs, then it is a good bet that your child is going to be removed from your house and placed either into foster care or with a family or friend close to your own.

In this initial hearing you have the right to request to be named as a temporary possessory conservator which would allow you to have some rights and duties during your CPS case while you work to be able to earn the right to have your child returned home to you. You will be required to fulfill certain duties in those temporary orders which typically means you will be going to counseling, therapy, or undergoing some sort of treatment due to an addiction or other behavioral problem.

Another issue that I see come up in CPS cases from time to time is that you may have an individual living in your home who is not a part of your immediate family or a part of your family at all. If this person is believed to have abused or neglected your child in some way, then part of this temporary orders phase may be to have that person removed from your house. If he or she has broken the law, then law enforcement may do this for you. However, under other circumstances, the responsibility to remove that person from your home may fall on your shoulders.

In that case, you need to have a clear in pointed discussion with this person where you explain the circumstances of your case and the consequences of that person's actions. It can be uncomfortable to ask a person living with you to leave but given the circumstances, I don't think most people would hesitate. when it comes to deciding between who you want to live with you more, this person or your child, it is an easy decision to make.

On the other hand, substance abuse counseling may also be required of you if you have an addiction to alcohol or drugs that is played a central role in the removal of your child. Unfortunately, this seems to be a common denominator with many CPS cases that I have been involved with over the years. It can be very difficult for someone in the throes of addiction to admit or come to grips with that addiction. If this sounds like you then the CPS case may be a blessing in disguise.

If substance abuse counseling is required of you in the temporary orders, then you will be allowed to find your counselor or will be assigned our location to attend counseling by a judge. Your participation will not be optional and your failure to participate in counseling sessions like these could result in the permanent removal of your child from your home or even the termination of your parental rights. As a result, you must take these counseling sessions seriously and make sure that you are abiding by the rules as outlined in your temporary orders or safety plan.

When it comes to Visitation with your child after an initial hearing it is really up to the specific circumstances of your case to determine how much access you will have to your child. Many times, if the facts surrounding the removal of your child are sufficient enough, you may be very limited as far as how many contacts you can have with your child consistently during the CPS case. What I see happen more regularly is that you will be able to earn more time with your child throughout your case and eventually can earn reunification and restoration of your managing conservator rights over him or her.

After an initial hearing, when can you expect to be back in court?

Approximately 2 months after your child is removed from your home you can expect to find yourself back in CPS court. You will be required to attend a secondary hearing that seeks to provide the judge with an update on your progress in completing the safety plan. The judge will want to see that you have taken concrete steps to not only complete the objective in the safety plan but also to remedy any other area of your life that is a concern and could cause harm to your child in the future.

Whatever Service plan was laid out for you in the initial hearing by the judge will be updated by the CPS caseworker working with you on your child's removal. You will be given notice of this hearing at least 10 days before the hearing is set to take place so that you may prepare for the hearing and may hire an attorney if you can do so. It is more likely that you will come to learn this hearing date the same day as your prior court date at the initial hearing. You can always ask a judge to appoint an attorney for you and the judge in your court will walk you through the process of how that could come to be.

Again, you will be allowed at the status hearing to talk to the judge about any persons in your life, be they friends or family, who may be well-positioned to take on a role as temporary caregiver for your child during the CPS case. Depending on where your child is staying you may prefer for him or her to be with a friend or family member that you are more comfortable with a period if this is the case you should have this information ready for your hearing and should speak to your attorney about whether or not to offer names to a judge at this time.

Most importantly, a permanency plan will be provided to the court from your caseworker that seeks to provide an outline for a permanent decision on the subject of custody and conservatorships of your child. A review of the Service plan outlined for you in the first hearing will also be done showing the judge how well you have abided by the structures set at that first hearing. Depending on the circumstances of your case, the permanency goals may be different for you than they are for another family in your area. You should not rely on the experience of other people in this regard and must look to the circumstances of your case to determine how well you're managing those goals and objectives.

What are the typical permanency goals of CPS?

When it comes to a CPS case, the agency will have four primary permanency goals when it comes to the long-term future of your child. From your perspective, the most hopeful of those four goals is to reunite your child with your family in your home? This will be the number one goal of your family as you proceed through the process and can be achieved by you meeting all the requirements of your safety plan and parenting plan. If you show that you are willing to participate in the process and are willing to keep your child safe, then the overwhelming goal of CPS will be to return your child to you. However, if you are unable to meet the objectives of your safety plan then other goals may be sought after by the agency.

For instance, depending on your child's circumstances the agency may recommend to the court that adoption of your child be considered. For instance, if the friend or relative that your child is living with has expressed interest in adopting your child or if an unrelated person has expressed an interest then this may be considered. Adoption necessarily means that your parental rights must be terminated, and you will therefore lose any right or duty you have under the law as it pertains to your child.

If not adoption, then another adult could be named as the primary conservator of your child as a result of the CPS case. While this adult would not be the legal mother or father of your child, he or she would maintain conservatorship rights regarding caring for your child, making decisions for him or her, and keeping him or her safe. A relative, friend, or unrelated person may fulfill this role. It is possible under this structure that your parental rights will not be terminated and that you will maintain some degree of decision-making responsibility as it pertains to your child.

Finally, CPS could maintain conservatorship over your child in the future after the CPS case ends. Here, your parental rights would be terminated, and managing conservative shipwrights would vest in the state or a foster family. From my experience, this is the least desirable option as far as CPS is concerned and they will look for a more permanent and stable situation than placing a child into foster care.

The status hearing is a setting where all the parties involved will touch base with the court to see where you are in terms of meeting the goals and expectations set up for you in the initial hearing. Your plan of service in that of your child will be reviewed and can be approved by the court for you to progress towards reunification with your child. Please note how important it is for you to participate in the process and to take advantage of the services required of your plan and offered by the state. Your parental rights may be at stake in are subject to termination if you do not participate.

Questions about the material contained in this 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 about the services provided to our clients by our attorneys and staff.

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  3. Take control of your child’s CPS case by following these tips
  4. How to stand up for yourself during a Texas CPS case
  5. How to prevent a second CPS investigation after your first concludes
  6. Family Law Cases in Texas: The final stages of a CPS case
  7. When can CPS remove your child from your home in Texas and what can you do about it?
  8. What to do if you no longer like your CPS service plan?
  9. In what circumstances could your child end up living with your relative during a CPS case?
  10. What can a CPS investigation into your family mean now and in the future?
  11. What to do if your spouse is being investigated by CPS in Texas for abuse or neglect of your child?
  12. Can CPS photograph your house and request your child’s medical records in Texas?

Law Office of Bryan Fagan, PLLC | Houston, Texas CPS Defense Lawyers

The Law Office of Bryan Fagan, PLLC 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles CPS defense cases in Houston, Texas, Cypress, Klein, Humble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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