At the beginning of a Texas Child Protective Services case, a hearing will be held involving all parties- you, your spouse, Child Protective Services and anyone else related to the case. The purpose of this hearing will be to determine whether or not Child Protective Services has enough evidence to continue to maintain temporary possession of your child away from your home. All parties have an opportunity to be represented by an attorney.
Before this hearing can occur the Department of Family and Protective Services has to perform a background and criminal history search on any relative who is listed by the parties as a potential, temporary home for your child. The Department will use the results of those searches to determine who would be the most suitable caretaker for your child should he or she continue to remain outside of your home.
What must happen for your child to be placed with a relative or other person after this hearing?
The Department of Family and Protective Services must go through with some legal steps before it is able to place your child in a living arrangement outside of your home. First and foremost it must prove that doing so is in the best interests of your child. The background and criminal history check that we just finished discussing must have come back with no "hits" on the preferred relative or another adult.
Before the time in which your child is placed into another person’s home, the Department of Family and Protective Services must arrange a visit between your child and the adult. The Department must then provide a list of information including your child’s school information, medical information and anything else that is relevant to the care of your child to that adult.
Will you be able to visit with your child when he or she is not staying with you?
This is a question that I encounter quite a bit when it comes to Child Protective Services cases. If the ultimate goal of your case is to reunify you and your child then, yes, you will be awarded some type of visitation schedule while your case is ongoing. The alternative goal of reunification is to have your parental rights terminated. This is likely due to a perceived, continuous threat to the harm and well being of your child on the part of Child Protective Services.
At the outset of removal, you will be allowed an opportunity to visit with your child no later than five days after the Department of Family and Protective Services is named as the temporary managing conservator of your child so long as they determine that it is in your child’s best interests that you be able to spend time with him or her.
A temporary visitation schedule for your child’s visits with you must be determined before a hearing can be conducted in your case. A court can then further change the schedule as proposed by the Department of Family and Protective Services.
What is an adversarial hearing?
Two types of adversarial hearings occur in conjunction with Texas Child Protective Services cases. The first occurs immediately after your child is removed from your home without a prior court order or hearing. This hearing must be held within fourteen days of the date that your child was taken into the temporary possession of the Department of Family and Protective Services.
The other type of adversarial hearing occurs when your child is not in the Department’s possession but the Department is requesting to take possession of your child at a later date. This type of adversarial hearing must occur no later than the thirtieth day after the date that a lawsuit is filed.
At the end of the day, the Department of Family and Protective Services has the burden on its side to show that the recommendations that it has made in its petition, primarily to continue the removal of your child from your home, should be approved by the judge. These adversarial hearings are the most crucial component in any case that involves Child Protective Services. As such, I would like to spend some time further discussing the components of this type of case.
What happens before an adversarial hearing?
If you have not been personally served with a citation in any case where the Department is seeking termination of your parental rights then the agency must make. Diligent effort to locate you. A citation is a run-down of fact that you have been sued, have a certain period of time to issue a response and detail the specifics of when and where you were when you were provided this information.
Ideally, you will be personally served with notice of the lawsuit as well as with a citation. If you cannot be served personally and the Department is not able to locate you, they must make a diligent effort to find you and to give you an opportunity to request to become appointed as the managing conservator of your child.
Once the Department has shown a court that they have made a diligent attempt to locate you, they can file a motion to serve your citation via publication. Before the citation can be published, however, they must file an affidavit with the judge that details the steps that they have undertaken to locate you for personal service. The judge must have sufficiently inquired as to how sufficient the diligence you showed was. Basically, a judge must have investigated your attempts to learn an address where you could be served personally before granting the Department’s motion to allow for service by publication.
How can the Department of Family and Protective Services provide you with notice of the suit?
Generally speaking, you must be provided with the personal service of a citation in a Child Protective Services case. This is different than the notice required for most hearings in a civil case. Once you have been personally served with notice of the citation, there is a lower level of notice that I required from that point forward. Your attorney may be notified of any hearing or another important court date in relation to your case from that point forward.
Most of the time when documents are filed and a hearing is requested, the attorney for the Department will file the documents electronically. An email will then be sent to your attorney who will be notified of the documents being filed- including any notices of hearing that will advise you of the date and time of an upcoming hearing.
Notice provided to your family members
The Department of Family and Protective Services is obligated to provide notice to certain close family members of your child. This would be done after they take possession of your child. This notice will include options that are available to this relative for participation in the care and placement of your family, Options that may be lost if that person fails to respond to the notice in a timely manner as well as the date, time and location of any upcoming hearings.
Do you have the right to an attorney in a Child Protective Services case?
Before the adversarial hearing may be held, and if an attorney has not already been appointed for you, the judge in your case must inform you and your child’s other parent of your right to have an attorney appointed to represent you in this case in the event that you are indigent and not able to afford representation.
The Texas Family Code allows the court to appoint you an attorney whenever there is a family lawsuit filed. However, if your first hearing is at an adversarial proceeding and you then request an attorney, you will need to fill out the paperwork required by the court to show that you are indigent and unable to afford your own attorney.
Your level of income, source of your income, assets that could be sold to hire an attorney, benefits paid to you by the state or federal government, and other expenses associated with your life will all be considered by a court before making a decision whether or not to appoint an attorney to represent you in this case. If you are determined to be indigent the court will appoint an attorney to represent you for the entirety of the case.
Details about a hearing after emergency removal of your child with or without a court order
A hearing must be held no later than the fourteenth day after the date that your child was taken into the temporary custody of the Department of Family and Protective Services. The date of this hearing can be postponed for up to seven days f you are an indigent parent. This extra time would be used to not only prepare for the hearing with your attorney but to respond to the petition filed by the State.
The Department must be able to show the court that there was a danger to the physical health or safety of your child which was caused by an act or failure to act of the person entitled to possession (you) and for the child to remain in your home is contrary to the welfare of that child. This is the exact burden on the Department as pulled out of the Texas Family Code.
Furthermore, there must be an urgent need to protect your child that required the immediate removal of your child and reasonable efforts were made to prevent the need for removal of your child from your home.
Determining the existence of a continuing threat of danger is a difficult question for the court to answer. The judge may consider whether your home includes a person who has abused or neglected another child in a manner that caused serious injury to or the death of the other child or sexually abused another child.
What happens if a judge determines that it is in the best interests of your child to remain in DFPS possession?
If the end result of your adversarial hearing is that a judge determines that your child should remain in the temporary care of the Department, a temporary order will be issued to that effect. You and your spouse will be informed while in the courtroom that your parental rights may be restricted or terminated completely if you cannot display a willingness to provide a safe environment for your child in your home.
Your child should be placed with a relative unless none is available, or it is shown that none is capable of passing a background/criminal history search. As a part of the proceedings in the adversarial hearing, a court may also issue a protective order naming your child as the party to be protected against any person deemed a substantial threat to their personal safety and well-being.
In tomorrow’s blog post we will detail a hearing when your child is not yet in the possession of the Department of Family and Protective Services. If you find yourself in a situation involving Child Protective Services and do not know where to turn for information, tomorrow’s blog post will be a good place for you to start your search.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan today
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