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When CPS Doesn’t Follow the Law- what you should know

Going through a contested CPS case means that you are likely encountering this state agency for the first time. One of the most common questions that we receive at the Law Office of Bryan Fagan is regarding what gas can and cannot do during an investigation related to you and your family. To be sure, CPS does have significant authority when operating under the impression that abuse or neglect of your child has occurred. The state provides the department of family and Protective Services the authority to act to initiate an investigation, work to collect evidence, and eventually make it determination of whether the removal of your child from the home is necessary.

The question for you and your family is what you all can do during this time to ensure that your rights are protected, the rights of your children are protected, and that you can do everything possible to reduce the amount of time that CPS is in your life. There are circumstances in which CPS involvement in your life may be unavoidable. However, that does not mean that you can simply act passively and not with the mindset based on eliminating the risk of your child being removed from your home and then ending the case as quickly as possible. 

If you have ever gone through a family law case before then you will immediately notice that there are differences between a child custody and divorce case and a CPS case. Let's walk through those differences right now and then we can discuss what CPS can and cannot do regarding your case. This time why one of the most frustrating parts of a CPS case is believing that the agency does not have a certain authority to act in some way when they do.

Differences between family law cases and CPS cases

The most significant difference between a family law case and a CPS case is that in a family law case your opposing party is almost always your spouse or a Co-parent. This means there you will have an opportunity to negotiate with your opposing party in the family law case on a nearly constant basis. While going through a divorce does mean that you could end up in a courtroom ultimately, he will also have ample opportunity to work through the issues of your case in a settlement. The most efficient use of your time in any child custody or divorce case is to negotiate with your opposing party to see if you can conclude your matter amicably rather than in the courtroom.

This contrasts with a CPS case. In a CPS case, you will not be able to continuously negotiate with the state agency. While it is possible to be in regular contact with CPS throughout the case, and it is recommended that you do, the reality is that there is not as much negotiation to be done. If CPS were to determine that your child had been abused or neglected that it may remove your child from the home. In which case, you and CPS will establish certain goals in terms of reunification with you and your home or replacement of your child outside the home moving forward. This represents an opportunity for you to negotiate with CPS at various points in your case.

However, engaging in regular negotiation with CPS is not a reality for the most part. Rather, CPS is a state agency and the caseworker assigned to your case will have many different investigations going on at the same time as a result, with unlikely that he or she will be able to devote as much time as you'd have to the case. The result is that CPS cases do not follow the same track as a family law case as far as always being able to reach out to your opposing party to see if you can speed up the process or avoid future hearings.

On the other hand, GPS cases do follow a predictable process in terms of hearing dates and other milestones. All in all, the CPS case should not last more than one year. While involved in a CPS case, you will have initial hearings before a CPS court judge, opportunities to engage in dialogue with the agency and develop goals for yourself, and a chance to take advantage of different programs made available through the state. These programs can help you to accomplish the goals of your safety plan and eventually have your child returned to your home if that is the goal held by CPS and you.

On a more informal level, probably the most significant difference between CPS cases and atypical family law case is that in a family law case the process happens right in front of you. This means that you will be able to keep up with the process by standing communication with your attorney. Any filings made into the case by your opposing party can be reviewed by you and your lawyer simply by going online. On the other hand, in a CPS case unless something happens through the court there is a great deal that can occur without your knowledge behind the closed doors of CPS.

The CPS caseworker and their supervisor can have meetings about the investigation into your family conduct the investigation generally and even interview people in your life you may have more information to provide. All of this can be done without your permission or knowledge. For that reason, it is recommended that you work with an experienced family law attorney during a CPS case. Defending yourself and your family in matters related to your children can be tedious, difficult, and stressful. Having someone by your side who has been there before and who can offer you a path towards an efficient resolution to this matter can be extremely helpful.

Just like we see in family law cases, CPS cases do not pause the rest of your life. While you may have a child involved in a CPS case you may have other children who are not. Their lives, your work life, other obligations, and the case itself will all take up time in your life. it's not as if you can take your remote control and press pause for the rest of your life to handle the CPS matter. Rather, the rest of your life will keep moving on whether you can commit as much attention as you would like to it. It would make sense if we have someone by your side who can understand the law, help apply the law to your case and also hold CPS accountable. The attorneys with the Law Office of Bryan Fagan are equipped to do just that.

What is CPS able to do under Texas law regarding your family's case?

Well CPS does have significant rights to take actions it deems necessary to protect your family and specifically your children, those rights are not unlimited. During the CPS case will become experienced in identifying the various ways that CPS can work to protect your children but at the same time disrupt your life to an extent. Recall that in a CPS case the agency can choose to exert a great deal of Thor it within your case so long as it is being done under the auspices of protecting your child from abuse or neglect. Agency does have certain procedures in place that it will enact in any investigation it will also review the specific circumstances of your case and make decisions based on what it believes to be in the best interests of your child.

To begin with, CPS has the right to investigate CPS has a system in place where people may anonymously make reports if they believe that their child has during a victim of abuse or neglect. Anyone may make a report to CPS. Doctors, teachers, neighbors, and others can and should make reports cheeky agency on behalf of your child if it believes that abuse or neglect has occurred. From there, CPS has a right to investigate. That doesn't mean the investigation will go anywhere or that anything will come of it. However, you should expect that CPS will pursue an investigation when it learns of potential abuse or neglect.

This means that investigations can occur about your child even if a report made is false. This can be one of the most frustrating parts of a CPS case. Learning that someone made a false report of abuse and elect against you to the state agency can be a sickening and extremely sad situation to find yourself in. The idea that someone would make this kind of accusation against you is enough to make even the calmest person extremely upset. However, I understand that the state agency does not immediately know that a report is false or without merit. As a result, you should expect that conduction investigation based on the information it has been provided. 

Specifically, some people must make reports to CPS if they believe that there is a chance that either of these things has happened to their child. Those people would include doctors, lawyers, and therapists. the report must be more than conjecture or hearsay. For the most part, reports of abuse or neglect must be substantial in terms of specific information regarding abuse or neglect. Bear in mind that CPS does not have to investigate reports where it is determined that there is not enough information that the information provided is not likely to be accurate.

Resources made available to you in a CPS case

As we talked about a moment ago, some of the most important benefits that can be made available to you in a CPS case are related to the programs and services that the state has access to. These programs and services focus on strengthening your ability to parent your children. This should not be looked at as CPS judging you or believing you to be unfit to be parents. Rather, CPS acknowledges that parents of all different types face challenges that are unique to them in their situation. Many times, these challenges are not completely your fault. When you are in circumstances that require outside help there are worse people to become involved with than CPS. 

For example, if you and your Co-parent have had problems with working together on coordinating efforts to raise children together then CPS might be able to help you work with a Co-parenting facilitator or coordinator. Relatively simple problems having to do with communication issues between you and your Co-parent could be enough to bring about an issue regarding abuse or neglect. However, you can potentially solve a lot of those issues by attending these types of parenting courses. Not only could they become mandatory as part of a safety plan for your child, but she may also see that you derive a great deal of benefits from attending the courses.

Can CPS speak to your child without your permission? This is one of the major concerns that many parents have heading into a CPS case. Namely, whether a CPS caseworker could choose to interview your child without your permission. The obvious benefit to CPS is that they would be able to get a perspective from your child free from your influence. Many parents would not be uncomfortable with coaching their child to be less than honest about a situation. Reviewing your child without your permission they could get to your child first and that's 10 Sibley receive a more honest response from him or her.

The reality of the situation is that the CPS caseworker cannot speak to your child without your permission. For example, if you deny them the ability to speak to you or your child at the beginning of a case and CPS must honor that. This would prevent them from speaking to your child outside of your presence at their school.

However, there are some exceptions to this general rule that I think merit some mention here. First, if your child is in your home with another adult and CPS comes to the door and asks to speak to him or her then that adult could potentially permit for CPS to enter the home and speak to your child. At that time CPS would be within their rights to speak to your child even if you were not the person who granted them permission to do so. Think of this a little bit like how if a police officer wants to enter your home, he or she may be permitted by someone that is not you as long as that person is over the age of 18.

Another important exception to this rule is regarding when CPS takes temporary conservatorships rights over your child. For example, suppose that CPS decides that it needs to remove your child from your home to protect him or her. In that case, CPS would need to hold an emergency hearing before the judge and present evidence as to why an emergency removal is needed. If the judge grants the request for emergency removal, then it is placing a clear child in the temporary custody, primarily, of CPS. This does not mean your parental rights are terminated but it does mean that CPS would have the ability to make decisions on behalf of your child. 

Once CPS gets temporary possession of your child it would be able to speak to your child but any number of subjects. Even if CPS places your child in foster care or even with a family member of yours CPS could still reach out and speak to your child at school or the other person's home. Temporary conservatorships over your child by CPS can occur in some circumstances even when your child is not removed from the home.

The other part of a CPS case that bears mentioning here is that CPS can work with you on the creation of a parenting plan. That parenting plan or safety plan will require you to follow certain rules and meet certain benchmarks to conclude their case or even have your child returned home. Sometimes this safety plan could include things like repairing a defect in your home that is dangerous. In other circumstances, it could involve something like attending Co-parenting courses or treatment sessions for alcohol or drug abuse. Usually, these safety plans are not court-ordered but your failure to abide by a safety plan or follow one can't be used against you in your case. 

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, 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 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 how your family circumstances may be impacted by the filing of a divorce or child custody case.

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