In some cases, at the conclusion of a Child Protective Services case, an opportunity will arise to adopt a child. This is one of the handfuls of options that you can undertake if you seek to adopt a child.
One of the other methods would be to adopt a child who had been living in a foreign country. If you receive an adoption order in your name that is made by a foreign country, that order will be treated exactly the same by the State of Texas as it would be had it originated here in Texas or in any other state in the U.S.
It would be wise for you to register that foreign adoption order with the State of Texas. You can file a petition to register the order along with a petition to change the name of the child if you wish to do so. As long as the Texas court does not find that the foreign adoption order violates the human rights or public policy of Texas, the judge in that court will order that the order be registered, and a birth certificate will be issued as well.
What happens in a hearing in an adoption case?
If the adoption case that you are pursuing is uncontested, that is to say, that there is no parent or another party who does not want you to adopt the child, a hearing will still need to be had in order to formalize the adoption. You, your spouse, the caseworker assigned by the adoption agency/State and the advocate appointed on behalf of the child should all attend this hearing.
On the other hand, if yours is a contested adoption case then more persons will need to be present for any hearing. All the people I listed above will still need to be there. In addition, any party who is contesting the adoption will need to be present. Attorneys for all parties involved in the case will need to attend, as well.
Contempt findings in Texas CPS cases
There are two kinds of contempt findings that are found in Texas law: direct contempt that occurs in the presence of the court during court proceedings and is dealt with by punishments immediately by a judge. The second sort of contempt is referred to as indirect or constructive contempt. These are actions that occur outside of the court’s presence and will be punished by subsequent actions of the court.
Direct contempt means that the conduct that is offensive obstructs the normal and proper administration of justice. Basically, by engaging in conduct that is deemed to be contemptuous, you have gotten in the way of the court doing its job. Since these types of contempt occur while all parties and the judge are in open court, they can be especially obvious. For instance, interrupting court proceedings by acting inappropriately or by delaying proceedings for irrelevant matters could be found to be acts of contempt.
The reason for this is that the interruptions take attention away from whatever courtroom proceeding is going on and forces all parties and the court to endure unnecessary delays until the interruption is dealt with by the court. The judge has an advantage when it comes to the ability to immediately hand out punishment for direct contempt, in that the judge directly experienced the bad acts. Once the judge takes action against you or whatever party engaged in contempt the hearing or trial will proceed as normal.
Here are some examples of direct contempt that I have come across in my years as an attorney:
-using improper speech or expressing indifference to the actions of the judge
-refusing to obey an order handed down by the judge during a hearing or trial
-continuing to act in a way that disturbs the court despite having been told to stop doing so by the judge
Indirect Contempt: What it is and what some examples are
Indirect contempt occurs while you or any other offending party are not inside the courtroom and in front of the judge. There is, therefore, no disruption of any courtroom proceedings that occurs and typically does relate to the case itself. In family law cases, we see contempt findings go against parties who purposefully violate court orders on a somewhat regular basis. When you file an enforcement lawsuit that seeks to enforce the terms of a court order, you are asking the judge to hold the opposing party in contempt of court.
Since you are having to go back to court to address the indirect contempt charges, the acts themselves do not directly interfere was the administration of a courtroom hearing or trial. These situations are not usually as time sensitive as a result. Here are some examples of actions that could be found to be indirectly contemptuous:
- An attorney or party having a conversation with a juror after the trial begins
- Failing to obey a court order (as described above)
What remedies are available to a court when a finding of contempt is appropriate?
Once a judge has determined that an action committed either inside or outside the courtroom is contempt, the judge can respond to the contempt by applying various sanctions. These sanctions can be quasi-criminal in nature. This means that there is the potential for jail time as a part of having acted inappropriately.
Civil Contempt has a purpose of securing compliance with a court order. In order to be enforceable by civil contempt, the order has to be clear. This is why it is crucial that any court orders that you seek to enforce later on be clear as to the expectations and responsibilities of all parties involved. What requirements must be met in order for a judge to hand down civil contempt punishments?
First, there must be a full and complete notice of the conduct with which the person being held in contempt is charged with. Next, you must have adequate notice of the court order that you have been accused of having violated. There must be enough time provided to you to mount a proper defense to the charges being made against you. If you are indigent and are facing jail time then you have the right to have an attorney appointed for you by the court. Finally, you must have had the ability to comply with the court order. If it can be shown by you that circumstances beyond your control made it impossible for you to comply with the court order then that is a valid defense against a contempt charge.
The whole purpose of criminal contempt is to have the punishment be punitive in nature. This means that in order to punish your past behavior, the punishment handed out by the court is disproportionate to the violation of the court order. You see criminal contempt handed down in direct contempt cases.
What evidence is available for use in a CPS case?
Child Protective Services cases present parties with situations that are very unique. For instance, these are some of the few types of civil cases where the main “victim” is a child. As such, it can be difficult to be able to obtain solid testimony from a child, despite their being the person primarily involved with the case.
In the event that your child is under the age of 12 and is alleged to be the victim of abuse or neglect, their statement recorded prior to a trial may be admissible as evidence in your trial. The statement needs to have been recorded with no attorney present and the statement must be both visual and oral. Next, the questions asked cannot be leading questions. Finally, all parties to the case must have had an opportunity to review the recording prior to it being played at a trial.
What about hearsay testimony of a child abuse victim?
Hearsay is defined as an out of court statement used in court to prove the truth of the matter asserted. In a suit affecting the parent-child relationship, a statement made by your child who is twelve years old or young that describes the alleged abuse against him or her is admissible as evidence. The conditions that must be in place, however, are that the court has found that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability.
What duty does an attorney have to report allegations of abuse or neglect of a child?
The requirement to report abuse and/neglect of a child applies to certain individuals without exception. This is true even if you tell your attorney something that would normally be protected by the attorney-client privilege. Members of the clergy, attorneys, doctors, nurses and mental health professionals are all professions that are impacted by this law.
Can your child remain in foster care beyond their 18thbirthday?
Extended foster care is possible based on a federal law that allows children to remain in foster care beyond their 18thbirthday as long as they have either remained in school, are working or are participating in a job training program.
Family visitation in CPS cases
No later than the thirtieth day after the Department of Family and Protective Services is named as the temporary managing conservator of your child, the agency must create a visitation plan that comes from collaboration with both parents. This is true so long as the ultimate goal of the CPS investigation into reunifying you and your child.
In order to make a determination as to how long and how frequent these visits can be, the Department will need to consider what is in the best interest of the children, the child’s age, their desires in relation to visitation with each parent and the location where your child is relative to you and your family. A plan must be filed at least ten days prior to any status hearing.
Once the judge has had an opportunity to review a visitation plan, he or she must prepare an order regarding each parent's visitation with your child. If the judge believes that visitation between your child and either of his parents are not in his best interest, then the court will need to render an order that specifies why that is. A plan to allow the parent to gain visitation time with their child must be stated in the order and a path to be able to do so must be provided as well.
The Department of Family and Protective Services has developed a no contact visitation plan that requires documentation of why visitation is not in the best interests of the child. Again, a plan must be created that will allow you or the other parent to gain the right to have visitation with your child during the pendency of this case.
If supervised visitation is found to be in the best interests of your child, then the details concerning those visitation sessions must be outlined. Where visitation will occur, when visitation will occur, the time ranges for each visitation session as well as who will be paying for the visitation session to occur at a licensed facility must be specified.
More on visitation will be posted in tomorrow’s blog
If you are interested in learning more about visitation in conjunction with a CPS investigation, please return to our blog tomorrow. We will be writing more about this and preparing families who are going through CPS cases to be able to get the most out of any visitation session that is made available to you and your family.
In the meantime, if you have any questions about the material that we have covered today 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 here in our office. These consultations are a great opportunity to have an attorney listen to your questions and directly address your needs.