From my experiences, I have learned that almost every family involved in a Texas Child Protective Services case has concerns about the possible removal of their child from their home during the case. This is a completely understandable concern in one that I want to be clear about where I in your position as well. It can be extremely intimidating to define yourself bearing down a CPS lawsuit while your parental rights hang in the balance. I always advise families going through family law cases to be very prepared to act intentionally during their case. However, this lesson applies twice as much if you and your family are going through a Child Protective Services case.
The reason why I believe that you need to be twice as prepared for a CPS case than you would for a typical family law case is that the stakes are higher in a CPS case. In a divorce or child custody case, you will be able to present evidence as to why your children should spend a specific amount of time with you. On the other hand, in a Child Protective Services case, we can feel like the burden of proof is on your shoulders to prove that you are a fit parent who is capable of caring for your child. In truth, the burden of proof is on the shoulders of the state of Texas to justify the continued removal of your child from your home. However, I can tell you from experience that parents begin to feel like the scales of justice are clipped against them when it comes to the return of a child to their home.
As anyone will tell you who has been through a family law case before perception is almost as important as reality. If you begin to feel like your ability to care for your children and spend meaningful time with them is slipping through your fingertips then you would understandably begin to act in desperation to be able to maintain your status as that child's primary caregiver. If you are anything like me, that desperation can lead to poor decision making and even worse outcomes. As a result, I would recommend that you take the necessary time to learn about important aspects of a Texas Child Protective Services case so that you can separate truth from Fiction.
What happens when and if your child is removed from your home?
This is one of the most important questions you can ask yourself about a CPS case. At least in a typical child custody or divorce case, you know where your child will be sleeping every night. That would either be at your home or that of your child's other parent. However, your child may be removed from your home as a result of a CPS investigation. At that point, your ability to determine with whom your child lives for some time is very much up in the air. As a result, I would like to spend a little bit of time talking to you about the removal process.
First things first, there is no guarantee or even a likelihood that your child is going to be removed from your home by CPS. Removal by CPS occurs in one of two situations: either if CPS determines that there is an emergency circumstance at play that presents an immediate risk of harm to your child or CPS believes that there is an ongoing risk to your child that cannot be remediated very quickly and therefore requires removal of your child. Even if your child is removed from your home removal is typically temporary to allow for you to repair any defects in your home, attend counseling or therapy, or undergo any type of other safety or service planning created by you and Child Protective Services.
At the end of the day, Child Protective Services does not go into your case to remove your child unless they can help it. Keep in mind that it is a tremendous responsibility for Child Protective Services and the state of Texas to be in temporary custody and hold conservatorships rights about your child. As a result, you can rest assured that the removal of your child will be the absolute last option that they choose to undertake. The safety and well being of your child must certainly be at risk of immediate harm for them to decide to take your child out of your home.
Once CPS has the permission of a judge to make decisions as to where your child lives temporarily the next question that must be decided is where will your child reside while he or she is out of your home. Many times you will be able to factor into this decision by providing Child Protective Services with information regarding family or friends who could fill this role. CPS will typically get in touch with you and work with you to fill up paperwork so background checks, criminal history checks in-home visits can be completed to determine if any of these people are suitable caregivers temporarily.
If the state determines that none of the persons you provide to them are suitable caretakers or you are unable to provide information about alternative caregivers then CPS may need to place your child into foster care for the duration or at least for part of the duration of your family law case. The circumstances surrounding the placement of your child into foster care may not be the best but the state of Texas will seek to ensure your child's safety for as long as he or she is out of your home.
Common questions regarding foster care in Texas during a CPS case
Probably the first question that parents ask either their attorney or a CPS caseworker after their removal of their child is why does he or she have to go into foster care? When your child has been abuse or neglected or is at risk of being abused or neglected, as determined by CPS, a judge may order that your child be put into foster care for some time. Typically, CPS will look to place your child with a familiar face such as a family friend or relative but in some instances, this is not possible. Foster care acts as another source of care for your children when need be.
You will likely have a court appearance in front of a judge at least once before your child being placed into foster care. This will give you your attorney if you have one, an opportunity to present evidence both as to why your child should be returned to your home and in the alternative why placement with a relative or friend is in the best interest of your child. The judge will then be able to consider the arguments of both CPS and yourself before deciding the placement of your child.
It sometimes happens that Child Protective Services remove your child from your home and then place your child into foster care for a very short period while alternative living arrangements can be sorted out. For instance, if there is a relatively quick fix in your home that can be made to return your child to the home then the child may remain in foster care for a very short period on the other hand if CPS is completing their research on family friends and relatives that were provided to you previously then foster care may be a temporary home for your children in that case as well.
Whatever type of situation you may find yourself in I would always recommend that you go to court when you receive notice of a future hearing. You may completely disagree with the proceedings and the removal of your child. However, just because you disagree with something does not mean that you should not participate in the process. Keep in mind that Child Protective Services is not like a relative whose actions you disagree with and you, therefore, will not go to Christmas dinner this year. Child Protective Services is another party to your case and if a hearing is set up at their request it is in your best interest to attend.
When you are in court, you should expect that the judge treats all parties with respect and may even seem collegial or friendly with the other parties. Keep in mind that in counties across Texas, CPS court judges tend to work with CPS personnel, attorneys in guardians at Litem in other persons regularly. Just because you see a judge acting friendly or cordial with other people involved in your case does not mean that he or she has it in for you or favors other parties over you. Overall, it is wise to show concern for your child and their well-being by attending every court date scheduled in your case.
It is not likely that you will be provided an attorney by the court right off the bat. On the contrary, you would likely need to show that you cannot afford or acquire an attorney despite your best efforts. At that point, you can formally be appointed an attorney by the court in one will be appointed for you if your case progresses to the point where your parental rights may be terminated as a result of the case.
Having an attorney in your CPS case is incredibly crucial. There are a lot of moving pieces associated with the CPS case and as a result, you must be aware of what is going on with the case and to what extent you must be Present for court appearances, meetings, social services, and other events associated with your case. An attorney not only helps to advise you on certain elements of your case but also ensures that you are on time for meetings and court appearances. Just having another person there to help keep you accountable for the process is very important.
You should also be aware that your child will be appointed their attorney to represent them during the pendency of the case. This attorney is known as an attorney ad litem. The ad litem attorney represents your child's interests and his or her desires. An attorney ad litem will meet with your child and can make recommendations to the court about future placement options and issues that impact your child throughout the case. Your child's interests may differ from yours during the case and that is why he or she will be provided with their attorney through the court.
What are the major court appearances in a CPS case?
At the outset of your CPS case, in the event your child is removed from your care without a court order, a judge will schedule a hearing for your case within three days. This hearing allows for a court to learn why your child was removed from your home and whether or not it is in the best interest of your child to be outside of the home until a second hearing can be scheduled. In the event, the judge decides your child is in danger while in your care then he or she may remain in Foster care.
An adverse aerial hearing will be held within two weeks of your child being removed from your home. This is typically the second hearing in a CPS case where a judge will decide whether or not to return your child home to you or whether a risk of continued to be shown neglect still exists in your home. If your child is not returned home to you then he or she may decide to place your child with a relative, family member, or continue care through a foster family. Importantly, the adversarial hearing allows you to present your side of the story with evidence to support your position.
A status hearing Will be held within 60 days of your child's being placed in foster care. The purpose of this hearing is to make sure that a family Service plan is in place and to allow you to confirm the understanding that this Service plan is the main path you can take to have your child returned home to you. Status hearings will allow all parties to touch base and check in on one another to determine how you are progressing in your Service plan and whether or not it is feasible to have your child returned home to you.
Eventually, the subject matter of your CPS case will shift towards discussing a permanency plan. Typically, around 5:00 or six months after the first adversary hearing the court will review your progress in any service plans or safety plans. These plans are created by you intending with CPS to help you progress toward meeting requirements as outlined in the initial court appearances. You may be required to attend anger management counseling, drug counseling, family therapy, or other classes intended to help you deal with problems in your personal life.
CPS will submit a permanency report to the judge that includes Their view of how you are progressing through your safety plan and their preference as to where your child will end up permanently after your CPS case. You can expect to attend permanency court hearings every four months until your case is resolved.
Typically, the end stage of most every CPS case will be a trial. Your goal in this hearing is to have your child returned home to you permanently by presenting evidence of how you have complied with the requests of CPS and how your home no longer presents a risk of harm to your child. A judge can either grant your request to have your child returned home to you, place your child in the permanent conservatorship of a friend or family member, begin the proceedings for your child to be adopted, and to terminate your parental rights if you have shown no willingness to participate in the planning for your child during the case.
Simply put, if you stay in touch with your child during the CPS case and display a willingness to participate in service planning then it is highly unlikely that your parental rights will be terminated. Remember that you and your attorney will play a role in developing service plans. As a result, you should expect that a judge will hold you responsible for living up to the terms of those plans as a result. Well, everyone's circumstances are different you can rest assured that almost certainly the goal of CPS will be to have your child return to your home so long as you participate in the process of following these Service plan.
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 that I recommend that you contact the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultations 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 about the services provided to our clients by our attorneys and staff.