As it sometimes happens in Texas Child Protective Services cases, the child involved in the case will not have a legally established father. Obviously, the child has a biological father but in the state parental registry there is no man listed as such. There could be several reasons for this, such as no Acknowledgment of Paternity having been signed, but this is important for a number of reasons related to legal cases. If you have fathered a child but have not formally acknowledged that you are the child's father, then today's blog post is for you.
If you are a man who is alleging that you are a child’s biological father, you need to know that your parental rights can be terminated if you fail to respond to notice of a lawsuit by submitting evidence of your paternity (through a valid test) or fail to file a countersuit in which you allege paternity of the child.
Additionally, if your child is over one year old at the time that the petition for termination is file and have not registered with the paternity registry your parental rights can be terminated if your identity and location are unknown. Or they can also be terminated if your identity is known but you cannot be located. Basically, you need to make yourself known to the court or at least known to the child's mother in order to have an opportunity to maintain your paternity rights. Hiding away and holding out hope that everything will work out, in the end, is not a good
Do you need to be personally served with notice of a pending lawsuit seeking to terminate your parental rights?
In order to have your parental right terminated as an alleged biological father to a child, you do not need to be served personally with a citation. There is also no requirement that anyone seek you out in order to provide you with notice of the pendency of the lawsuit. This means that you can have your parental rights terminated without your even knowing about it. A minimal amount of effort will need to be done on the part of the Department of Family and Protective Services in order to learn whether or not your child has a father. Once that duty has been discharged there is little standing in the way of a judge terminating your rights.
What this should tell you is that you need to be proactive about protecting yourself and your parental rights to your child. If you believe that you are the biological father to a child it is in your best interests to contact an attorney about how to get yourself legally established as that child’s father. There is the need to undergo genetic testing and the need to file a lawsuit that seeks to establish yourself as the father.
What does it mean to make the best interest determination on behalf of a child?
The Texas Family Code lays out a list of factors that a judge should look to when attempting to determine what is in the best interests of a child. The desires of the child as to where he wants to live and with whom he wants to live with are important, especially for older children. The safety and well-being of the home environment for the child is also critical to this analysis. Your parenting ability, the programs that are available to assist you in parenting your child and the stability of your home are a few more factors for you to consider.
What presumptions will a court make in regard to making conservatorship decisions?
The most basic presumption that a court will make in regard to conservatorship of your child is that you should be appointed as the managing conservator of him or her. Unless the judge in your case believes that appointing you as the managing conservator of your child would significantly impair your child’s physical health or emotional development you will be appointed as the managing conservator of your child.
Although this is a presumption that will be a factor in your case, if there is a history of family violence that involves you and your child, then that presumption will no longer be in place. In making a decision as to whether to appoint you as a managing conservator of your child, the judge will consider evidence regarding your having intentionally used abusive physical force against your child, your spouse or the other parent to your child within two years of the beginning of this lawsuit.
Two legislative sessions ago, our state legislature passed a law that stated it is now presumed that it is not in the best interests of a child for a parent of theirs to have unsupervised visitation with their child if there is evidence or a history of neglect, abuse or family violence that has been committed by that parent.
If you are not named as a managing conservator of your child as a result of the Child Protective Services case, there is yet another presumption that you should be named as a possessory conservator. This means that you will be able to maintain many decision-making responsibilities for your child and will have visitation rights. Your child would not be living with you on a primary basis as a possessory conservator. However, if there is evidence in place that shows it is not in your child’s best interests for you to be appointed as such it will not occur.
What must a judge consider before naming the Department of Family and Protective Services as a managing conservator of your child?
If the judge finds that it is not in your child’s best interests for you to be named as your child’s primary conservator, it is possible that the Department is named as permanent managing conservator of your child. Your parental rights may or may not be terminated as a result of this proceeding, depending upon the circumstances of your case.
This is a somewhat rare step to take at the conclusion of a CPS case. Judges do not want to place a child into permanent custody of the state. It is much preferred that they be able to return home to live with you or to at least go to live with a relative. However, in some instances, it is appropriate to name the state as the permanent managing conservator of your child. Here are the factors that a judge will consider before making a decision to do so.
First, consideration will be given to whether your child will turn 18 years old in no less than three years. Next, if your child is 12 years old or older and has expressed a desire to not have your parental rights terminated and does not want to be adopted that will factor into the judge’s decision-making analysis. Finally, the general needs and desires of your child will be weighed against the other circumstances of the case.
What additional responsibilities does a non-parent managing conservator have over a child?
If the Department of Family and Protective Services removes your child from your home and then a judge determines that it is in that child’s best interests to remain outside of your home on a permanent basis, the Department has additional responsibilities that it owes to your child.
For instance, in a lawsuit in which the judge appoints your mother (the child's grandmother) as the managing conservator of your child, the Department must provide your mother with an explanation as to the difference between being appointed as the managing conservator of your child and the adoption of your child as her son or daughter. Specifically, your mother would be told:
-her being appointed as the managing conservator of your child only conveys rights specified by the court order. She would not have all of the rights and duties afforded under the law to adoptive parents to a child
-you may still be entitled to request visitation time with your child or can ask the judge to appoint you as your child’s managing conservator
-finally, your mother’s being appointed as your child’s managing conservator will not result in the eligibility of your mother and your child to receive the same benefits from the state that an adoptive parent and child would be able to get
What rights does a non-parent, permanent managing conservator of a child have?
However, as the permanent managing conservator of your child, your relative (in this example, your mother) would have many rights in relation to making decisions for your child. A sampling of those rights would include:
-the right to authorize your child to receive medical treatment, including immunizing the child
-the right to obtain and maintain health insurance coverage for your child
-the right to enroll your child in school or daycare
-the right to authorize your child to be able to participate in extracurricular activities like sports through their school
What happens in a permanency hearing after a final order is issued?
When your child is in the permanent managing conservatorship of the State, your judge has to review the case on occasion in order to make sure that their basic needs are being met in this living scenario. Keep in mind that finding your child a permanent place to reside would still be the goal for your child at this stage, rather than to have him or she remains in the permanent custody of the Department through their 18thbirthday.
For as long as your child remains in the permanent managing conservatorship of the department, whether or not your parental rights have been terminated, the judge has to continue to review the status of your child until he or she permanently leaves the conservatorship of the Department through being adopted or in transitioning out of state care as of their 18thbirthday or their graduation from high school- whichever of those events occurs later in time.
This is done as a response to the prior history of the State and their involvement with children in their custody after a CPS case has concluded. It used to be that once a child entered into a long term care situation with the Department as their permanent managing conservator, very little was done to continue to work with that child’s parents or to locate another place for that child to live on a full-time basis. Outside of foster care, not even relatives were contacted for the most part to seek another place for the child to reside.
When a permanency hearing occurs after a final order is established
Once an order is entered that establishes the Department as the permanent managing conservator of your child, if your parental rights have not been terminated a permanency hearing after final orders must be held within six months. In the event that your parental rights to that child have been terminated then the first permanency hearing after final orders must occur within 90 days after a final order is issued. These hearings will then occur every six months until a permanent managing conservator other than the State can be established.
More on permanency hearings after final orders will be discussed in tomorrow’s blog post
We will continue to discuss this important topic in tomorrow’s blog post. Thank you for showing an interest in the subject of Child Protective Services cases in Texas.
If you have any questions about today’s blog post or need clarification on anything that we wrote about, 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 where we can answer questions and address your problems directly with you.
Our attorneys and staff take a great deal of pride in being able to work on behalf of our clients in family courts across southeast Texas. We believe that the superior results that we achieve for clients are directly related to the strength of our attorney-client relationships and the work that we put into each of our cases.