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What is Conservatorship? How does a CPS removal involve Conservatorship?

In Texas family law cases conservatorships refers to a legal term for custody. As a family law attorney, I am familiar with the term custody for obvious reasons. Not only our child custody cases a large part of a family law attorney practice, but custody is also a term that is used by people just like you when they come into our office to talk about their circumstances. What I will surprisingly tell people is that the word custody is not used in the context of family law at least as contained in the Texas family code. The issues that we consider regarding custody are more clearly define within conservatorships legally speaking.

For Child Protective Services to obtain possession of your child as a result of a CPS case, a suit affecting the parent-child relationship must be filed either by the state agency or by a person. When CPS asks a judge for your child to be removed by them, this means that they are asking the judge to name the state of Texas as a temporary managing conservator of your child. This means that CPS would have the ability to make decisions for your child such as where he or she will live on a full-time basis. This right is not permanent, at least not yet, and is subject to further intervention by the court. 

However, before we can get to the point where the state can ask a judge to be named as your child's temporary managing conservator CPS must first have their caseworkers and supervisors discuss with their attorneys whether or not it is feasible to be named as temporary managing conservators of your child. This means that a review of your specific circumstances must first occur to see whether or not there is a legal need. If the attorneys for CPS do not believe your child must be removed from the house, then he or she will not be taken from you without first having a hearing. Only in emergency circumstances, where the well-being of your child is at immediate risk, would your child be removed without a court hearing first period 

If the state of Texas determines that it will need to move forward with a formal legal removal of your child then you have options as to how to proceed as far as representation is concerned. For one, you have the right to hire a private attorney to represent you. For instance, the attorneys with the Law Office of Bryan Fagan represent families and parents just like you in CPS cases throughout Southeast Texas daily. On the other hand, if you are unable to pay for an attorney a court-appointed attorney will be made available to you. the reason why it is so important for you to have an attorney in this type of proceedings is that there is a chance that your parental rights could be terminated.

What does it mean for CPS to have temporary managing conservatorship rights over your child? 

I can only imagine how disconcerting, worrying in turbulent it must be for parents who go through a CPS case. There is so much at stake in these types of cases and the level of knowledge most people have about a CPS case is minimal. As a result, I want to make sure that you are aware of the basics of a CPS case as it pertains to conservatorships writes for you and your child moving forward. Keep in mind that if you have specific questions about these types of cases but you will be better served to speak with one of our experienced family law attorneys about your case rather than wondering to yourself or your friends about your circumstances.

For a CPS case, temporary managing conservatorship means that the state of Texas will temporarily take physical custody of your child once they are legally permitted to do so. This will either come after a court order is obtained naming the state as the temporary managing conservator of your child or can occur on an emergency basis before taking this matter before a court. Typically, when CPS obtains custody of your child on an emergency basis the state must hold a hearing no more than three days after removal of your child. At that time, you will be able to present evidence and speak to the judge about why the removal of your child was unjustified and why your child should be returned home to you. 

In a hearing before the court, the state will likely ask that they be able to make decisions for your child on an ongoing basis. All of the rights that you previously held to your child would be transferred over to the state temporarily. This means that living, educational and medical decisions would be made by CPS on behalf of your child until he or she is returned to you and your conservatorships rights are restored.

Additionally, and most every Child Protective Services case you will be required to complete a service or safety plan that highlights steps that need to be taken in your life and in your home for your child to be returned to you. On a personal level, that may mean that you have to undergo some sort of therapy or counseling such as Alcoholics Anonymous or narcotics anonymous. You may also be required to have discussions with people in your home who present a risk of harm dear child and have those persons leave. Finally, there may be a physical condition in your home that needs to be remedied for your child to be returned home. You will need to show proof that you have taken the steps necessary to remedy this problem. 

What could lead CPS to want to terminate your parental rights? 

As I mentioned a moment ago, CPS could move to terminate your parental rights in conjunction with their investigation. As part of their being able to have temporary managing conservatorship over your child, they must file a request with the judge contained in a petition. We talked at the beginning of today's blog post about their having previously filed a suit affecting the parent-child relationship as well. This legal document would likely include language that asks a judge to terminate your parental rights upon a formal hearing or trial. 

At this point, I would understand if you are feeling unwell because your parental rights could be terminated over this CPS case. I imagine that it would feel extremely helpless to have your ability to parent your child in the future determined by a judge that does not know you or your family very well. However, you need to know that it is not a given or guaranteed that your parental rights will be terminated. You can complete the safety plan or parenting plan outlined in your case and have your child returned to you. By the same token, if he did not complete the requirements as laid out in the court orders then CPS may ask a judge to terminate your parental rights as a result. 

What is an ad litem in conjunction with a CPS case?

There are some terms utilized in family law cases that you will be familiar with. We have already talked about how custody is one of those terms that you are likely very familiar with based on how frequently it is utilized in our culture. However, there are some terms that you likely are unfamiliar with but play a pretty significant role in your case with a CPS judge. One of those terms is an ad litem. A judge can appoint an ad litem attorney or Guardian to your case depending on the circumstances present. 

An attorney ad litem can be appointed by the judge as an attorney who will be making recommendations to him or her based on the circumstances of your case from a legal perspective. A Guardian ad litem can be the same person as the attorney ad litem but oftentimes is not. The Guardian ad litem will seek to make recommendations based on what is in the best interests of your child after having interviewed your child and reviewed thoroughly the circumstances of your case. 

At this point, you may be asking yourself how is it that someone else could intercede and speak to what is in the best interest of your child more than you as the child's parent. After all, if you don't speak for your child well then who will? The reality of your circumstances is that your positions in the case may be averse to that of your child. Most every parent involved in a CPS case believes that he or she is best suited to care for the child in the future. However, that is not always the case, and, in some circumstances, the parental rights of a parent do need to be terminated from an objective standpoint. Two people who can play a large role in this process are the attorney ad litem and the Guardian ad litem for your child. 

An attorney ad litem will speak with your child, depending on their age, and learn what his or her wishes are as far as being reunited with you or seeking permanent placement with a family member, friend, or another person. The attorney ad litem is essentially the eyes and the ears of the court when it comes to your child. Since it is unlikely that the judge will personally meet with your child the attorney ad litem can meet with him or her and make judgments based on their interviews with the child and their feelings about the case subjectively and objectively.

In Texas, a group is known as CASA (court-appointed special advocates) oftentimes acts as the Guardian ad litem. Individuals who volunteer with this group have knowledge, training, and skills to become someone who is trusted by the court to make recommendations about the best interests of the child. This person is typically not an attorney but maybe a retired person or another individual who has an interest in helping Texas families.

What the Guardian ad litem does is make reports recommendations to the judge in your case regarding your child's welfare, safety, and health. These recommendations and reports will directly tie to what is in the best interest of your child as far as her physical health and safety, development, and future overall. The Guardian ad litem will be able to review documents from your case, attend hearings, and even access your child's medical and school records. Be aware that a Guardian ad litem can also meet with your child without your knowledge or permission.

If your child does not stay with you where can CPS place your child? 

This is an entirely relevant question for you to be asking at this stage in the game. The well-being of your child is of the utmost importance to you even if he or she is not staying with you currently. Knowing where he or she is and being able to check up on him or she is critical not only to your mental health but to the progress of your case as you attempt to complete the various safety and parenting plans assigned to you. In many cases, you will be able to play a direct role in where your child is placed.  

For instance, if you can provide CPS with information regarding friends or family members who are suited to take your child temporarily then the Department of family and Protective Services will seek to place your child with these groups before considering outside placement such as with a foster family. Once it becomes clear that your child is going to be removed from your home you should speak to people in your life whom you believe are well suited to care for your child temporarily. If any of these folks are willing to take your child home with them then you should collect their information and provide it to both CPS and the judge at the type of your hearing.

Just as a bit of information for you, CPS will require that your friend or family member not have any criminal history or have been previously involved in a CPS case of their own. CPS will typically send an employee to the home of this friend or family member to investigate the members of their family and the home itself to determine whether or not placement is appropriate for him or her. Throughout the process, if it becomes apparent that the living conditions of your child are not appropriate or working out well you should continue to provide the state with names and information for other people who may be able to care for your child on an ongoing basis.

When do you get to talk to a judge in the CPS case?

The last thing that we will discuss in today's blog post is the subject of an initial hearing in your CPS case. if a judge names the state of Texas as the temporary managing conservator of your child it will occur at an initial hearing. At that hearing, you will have the ability to request to be named as a temporary possessory conservator which allows you to maintain some rights and duties throughout the Child Protective Services case. Also outlined in any orders from this hearing will be the requirements that you must attend parenting courses, counseling sessions, or things of that nature.

The type of services and sessions of counseling that may be required of you will attempt to directly address the reason why your child was removed from your home. For example, if you are battling drug addiction and your child was removed from your home due to that addition and you're keeping drug paraphernalia in the home that is likely that you will be required to attend some sort of drug and rehabilitation counseling throughout your case. Your failure to do so could result in the termination of your parental rights. It is not optional for you to attend these counseling sessions or other orders made by the court. 

Custody orders that come out of an initial hearing revolve around a Visitation schedule for you and the rest of your family. Additionally, if you have provided the information for friends and family who may be able to house your child during the CPS case then court orders will state whether or not the judge is going to consider their home as placement for your child. Finally, if your child requires mental, medical, or any other kind of valuation that will be stated in this order as well.

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 I recommend that you contact the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultation 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 the services provided to our clients by our attorneys and staff.  


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