Intervention into Texas CPS cases
In a CPS case originating in Texas, it takes some effort in order to be able to intervene in a case. Today's blog post from the Law Office of Bryan Fagan will cover what is required in order to achieve the standing sufficient in order to intervene in the CPS case. Additionally, we will discuss with you what needs to be included in any response filed by you against another person trying to intervene in your case. Finally, as with anything in the law, there are special circumstances that are often attached to CPS cases. As such, we will detail what consideration you may need to give to these scenarios.
What is standing and how does it impact a CPS case?
If you are not the parent of the child involved in the CPS case and would like to establish standing sufficient to intervene (become a party) into that case, you can do so through two different avenues. First, you could establish standing sufficient to file your own lawsuit independent of the original suit. Second, you can intervene in a pending lawsuit- such as the CPS lawsuit that has already been filed.
In order to achieve the standing sufficient to file an original family suit in Texas, you will either need to be the parent of the child involved in the CPS case or be authorized as a guardian or representative of the child in a court-ordered proceeding. Otherwise, you would need to be a person who has had actual care, control and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.
For our purposes, we need to determine what actual care, control, and possession mean. Texas appellate courts have determined that when breaking down these elements that the following factors are relevant:
-that the child lived in your home on a consistent and frequent basis; living = stays there overnight
-financial support must have been extended to the child via food, shelter, clothing, medical and school-related expenses
-participating on a consistent basis in the educational rearing of the child; providing transportation to school, assistance with schoolwork and the like are considered here
-feeding, clothing and health care as mentioned above as a part of financial support
What type of standing is necessary for you to be able to request to adopt a child or terminate parental rights?
You may be able to file an independent case to terminate a child’s parent’s parental rights and to also adopt that child under certain scenarios. If you are the step-parent of that child that is probably the most straightforward example of a person that may file this type of lawsuit. Otherwise, you would have had to have the child placed with you for adoption purposes and then resided with that child for at least thirty days before the filing of the lawsuit. The vaguest circumstance that could provide you with sufficient standing to file this type of lawsuit would be when a court determines that you have had substantial past contact with this child sufficient to confer standing.
What are the standing requirements in relation to grandparents?
A grandparent, uncle, aunt or cousin of close relation to the child may file an original lawsuit requesting managing conservatorship of the child if there is proof that the order that is being requested by you is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. On the other hand, if the child's parents (both), surviving parent or managing conservator of the child filed the petition or consented to the lawsuit then you would also have the standing to proceed.
When it comes to proving significant impairment to a child’s physical health or emotional development, we are talking about showing that drug use or criminal convictions related to the child’s parents are in play. Physical and/or emotional abuse are also key parts of this equation. Even showing that abuse occurred months before the filing of the lawsuit can meet the standing requirement. If there is a continued risk of harm the abuse could have occurred in the more distant past.
I have seen circumstances such as failing to send their child to school on a consistent basis and the failure to have their child enrolled in tutoring or behavioral programs suffice for a finding of the impairment of the child’s emotional development.
How to achieve standing sufficient to intervene in a pending lawsuit
You are not able to file an original lawsuit requesting possessory conservatorship of a child if you are a grandparent to a child. You may be able to gain standing to intervene in a pending lawsuit if you have had substantial past contact with the child. There must be proof shown to the court that the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair that child's physical health or emotional development.
Based on the above paragraph, it is necessary for us to talk further about what counts as substantial past contact. Typically, substantial past contact means more than seeing the child on a regular basis. Frequent care for the child, living nearby to the child and spending a lot of time with the child and their family has sufficed for courts across the state of Texas. It seems like daily supervision over a lengthy period of time is the magic component for establishing standing in this regard. If you are a potential intervening party into a lawsuit then you must be able to show that you assisted in the daily functions of custody for that child over a period of at least two months.
Intervening into a CPS case as a foster parent to a child
There are two routes that you can take as a foster parent to intervene in a child's CPS case. The first is that you may file an original lawsuit as a foster parent so long as you can show that the child was placed into your home for at least 12 months ending not more than 90 days preceding the date of the filing of your petition. Or, you can show that you have had substantial past contact with the child and can show proof that the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair that child’s physical health or emotional development.
Showing substantial past contact as a foster parent means having your children for four months at a minimum. There are multiple Texas appellate court cases that state various rulings on this subject so I would recommend that you speak to an attorney about what you are likely to need to establish as a foster parent in your case.
Modifying the Parent-Child Relationship
If you are planning on attempting to modify the parent-child relationship, specifically in designating yourself as the person who has the exclusive right to designate the primary residence of a child you need to be aware of some filing deadlines. You should seek to file your lawsuit not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement.
Once you have established that you have met the above requirement, you should attach an affidavit to your petition to modify that contains one of the following allegations:
-that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development
-that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interests of the child, or
-the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interests of the child
In the event that you do not provide sufficient facts to support the above allegations in your petition, the court will deny your request to hold a hearing to modify the prior court order. On the other hand, if the court determines that there is sufficient factual basis to hold a hearing date and time will be sent to you and any other party to the case notifying you of when a hearing will be held.
What other considerations do you need to be mindful of when intervening into a CPS case?
Some courts in Texas have successfully denied intervention petitions as being untimely filed if they are filed too close to the deadline for dismissal of the case. Consider this example to better explain this. Say that you are a grandmother who has filed a petition to intervene in a CPS case involving your grandchild. That lawsuit was filed two months before the date that the child's case was set to be dismissed. If you knew about the ongoing lawsuit from the beginning and waited until the very end of the case to file an intervention petition a court may very well deny your attempt to intervene on this basis alone.
Also, consider a scenario where you are a grandparent who is living outside of the state of Texas. You may have just found out about your grandchild’s CPS case a few months earlier, but if it is shown that you delayed in filing your intervention case then you may run into a situation where the judge is unsympathetic and tosses out your petition. Do not wait until the last minute. CPS cases are long enough as it is. Judges do not want a child’s life to be in legal-limbo for any longer than they have to be.
How complicated the case is can impact whether or not you are able to intervene in the case
An intervention lawsuit involving a child should not be tossed out if you could have brought the same lawsuit in your own name, rather than in the intervention. Keep in mind that this is especially true if your intervention does not complicate the issues of the case and the intervention is essential to effectively protect your interests. This is true, from what I have seen and read, even if the intervening lawsuit has been filed only a few weeks before the trial date.
Final thoughts on intervening into a CPS case
If you are a family member of a child who is going through a CPS case it is understandable that you may have many questions about what role you can play in that child’s case. You may have a legitimate concern for that child’s well-being, but if you do not know where to start finding answers to your questions you will not be able to help that child at all.
That is why seeking appropriate legal assistance is crucial to your success. As you could tell by reading today's blog post there are many issues that are related to the intervention of a non-parent adult into a CPS case. With so many things to keep in mind, it is easier said than done to accomplish your goals.
For that reason, if you have questions about what you have read today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys work on behalf of clients in CPS and family courts across southeast Texas and do so with a great deal of pride. A free of charge consultation with one of our attorneys are available to you and your family six days a week.
Going into a family law case, especially a CPS case, without representation means doing so without a clearly defined game plan. Even if you have goals for yourself it is important that you have a plan of attack for how to accomplish those goals. Our attorneys and staff have walked alongside thousands of our neighbors as they work to do what is best for their families and themselves. We would be honored to do the same for you.