When Child Protective Services comes to your door, it can be a genuine shock to your system. You may know who or what CPS is, but to understand that these are the people from the government who have the power to remove your child from your home is a different sort of thought than knowing that these are the people who are supposed to protect kids from people that seek to harm them. To think that CPS believes that you would be capable of harming your kids is almost an impossible thought for many parents to have.
Yet, when CPS comes and knocks on your door, the concerns over who the people are would likely be outdone by concerns about how the CPS employee can enter your home without your permission with a police officer or two. Suddenly you are being told that your child will come with her to another location until suitable arrangements can be made regarding your child. A report was made to CPS regarding abuse or neglect of your child. Sufficient evidence was presented to a judge asking them to give temporary conservatorship rights to CPS. Rights that trump your own. Just like that- your child is out the door. What can you do next? What should you do next?
An emergency hearing held without you is known as an ex parte hearing. These hearings involve a CPS lawyer presenting evidence- statements, photographs, other physical evidence, and information from their investigation into your family. If CPS believes that there is an immediate threat to their physical person, they may ask the judge for an emergency order granting them temporary custody of their child. This would allow them to enter your home with law enforcement and remove your child. You'll get your chance to go to court and win back custody of your child, but for three days, you may be wondering what exactly just happened to you and your child.
Approaching a removal hearing from the perspective of a CPS attorney
Sometimes I think it is helpful to look at a legal question from the vantage point of your adversary. In an ex parte removal hearing, the state of Texas will be charged with looking out for the best interests of your child. This is the primary consideration in determining conservatorship, possession, and access to your child. The state will need to put forth a case to the judge that there being in the temporary custody of your child serves their best interests more than you're doing so. The judge will take on the position of a person of ordinary prudence and caution when looking at this issue. Keep in mind that judges are not leaping at the opportunity to award primary custody of your child to someone other than you and your spouse. It is a high burden to give conservatorships rights over your child to a person other than one of their two parents.
The CPS caseworker's affidavit will be the primary evidence in the ex parte removal hearing. An affidavit is a sworn statement under oath. The caseworker will type out their involvement in the case and the allegations made against you. The basis for their wanting to remove your child from home will be stated in this affidavit, as well as any evidence or information that would go towards supporting that decision. A judge will look to the affidavit to determine whether the evidence is sufficient to meet that standard to satisfy a person of ordinary prudence and caution.
Along with the affidavit, the CPS attorney will file a petition to remove your child on an emergency basis. Additionally, the court clerk will issue a citation and notice to you and your Co-parent to notify you all of a future adversarial hearing. While you will not have an opportunity to attend the ex parte hearing for removal purposes, you will have a right to attend the adverse aerial hearing. Typically, it would help if you were given at least three days' worth of notice before this adversary hearing to hire an attorney and prepare a case of your own.
What evidence must a prosecutor show to remove your child?
Probably the most significant piece of information and evidence to show a judge would be an immediate danger to the physical health or safety of your child. In the alternative, the prosecuting attorney must show that your child has been a victim of neglect or sexual abuse. There are multiple ways that the prosecutor could have evidence showing either of these two conditions are in place. Next, the prosecuting attorney would need to show the judge that continuing to allow your child to live in your home will be contrary to your child's best interest. Finally, the judge must be satisfied that there is not sufficient time, consistent with your child's physical health or safety and the nature of the emergency, to hold an adverse aerial hearing where you can attend and present evidence of your own. So long as the prosecutor meets these burdens, then it is likely that your child will be removed from your home.
Again, this does not mean that your child will permanently be removed from your home. It doesn't even mean that your child will be removed from your home beyond the next couple of weeks. All it means is that an emergency circumstance justified the removal of your child without an adverse aerial hearing. Judges understand that this is a difficult position to put you in and will give you every opportunity to present your case in an adverse aerial hearing shortly after that.
Once a family court judge determines that CPS made the required showing and presented sufficient evidence, the judge will issue an ex parte order for the protection of your child. This involves removing your child from your home and granting CPS temporary conservatorships rights over your child to make decisions regarding their health and well-being. Guardian ad items and possibly attorney ad litem will be appointed to the case to look out for your child's best interests independent of yours or the state of Texas. Finally, an adverse aerial hearing will be sent within 14 days to allow you time to prepare a case of your own to show why your child should be returned to your home. CPS must go to court no later than the next business day after removal to request temporary managing conservatorship of your child.
What happens and an adversarial hearing?
In an adverse aerial hearing, your goal is to prevent the state from maintaining their temporary managing conservatorship of your child. You would like to have those temporary rights terminated in the state and instead have your child removed back into your household. This does not necessarily mean that the investigation into your family by CPS will conclude at that time. It does mean that your child will no longer be living outside of your home in this state will not have conservative shipwrights to your child after the hearing.
Likely, this hearing will be your first opportunity to address the judge and present evidence to counter what the judge has already seen from the prosecutor and CPS. Any evidence you have in this hearing as to why the state cannot and has not met its burden in producing evidence showing why they should continue to have temporary management rights under conservatorships for your child. This means witness testimony, documentary evidence, or other physical evidence can and should be utilized in these circumstances. This will be your best opportunity to stop CPS in its tracks and to have your child immediately returned home to you. If not, it is far more likely that you will have an ongoing circumstance where your child will reside outside of your home.
You and your attorney should request in advance the names of any witnesses that CPS anticipates calling to testify in a hearing. Police reports, photographs, or any other material that the state will use to refresh a testifying witness's memory should also be made available to you. You should review this material with your attorney to ensure its accuracy. Your running water will have an opportunity to make objections and attempt to show the judge that their burden of proof has not been met. Often, CPS will rely upon last incredible or even hearsay to temporarily remove your child. If you can show that no emergency condition exists and that the evidence used to justify their removal was faulty, then you are in a good position in terms of having your child returned home to you.
The court must return your child home to you unless the judge determines that there was a danger to your child's physical health or safety that was present at the time of the removal and is still present. If it continues to be the case that your child being in the home would be contrary to their best interests, then you can rest assured that the judge will continue to grant CPS temporary conservatorships rights. Additionally, suppose a judge determines that not enough effort was put forth by CPS to remedy or prevent the need for removal. In that case, they will need to work with you and your family as best they can before seeking removal. This likely means working with you to fix or repair any household conditions that would justify removal or working with you on creating a safety plan that would go towards promoting the health and safety of your child.
A judge can return your child to you or place your child with a non-custodial parent or relative. Whoever was caring for your child temporarily in the temporary ex parte order could continue in that regard. A status hearing will be set for at most 60 days in the future. No matter what happens in the adversarial hearing, the court will want to check in on all of you within two months to see if your child's living situation needs to be updated. These 60-day periods will allow you to make changes in your life, if necessary, as well as to work with CPS on fulfilling any obligations under family-based social services or a safety plan.
What else occurs at an adverse aerial hearing?
CPS will need to talk with the judge about visitation orders for you if it is determined that the child cannot be immediately returned to your home. Depending upon the nature of your case and any allegations of abuse or neglect made against you, then you can likely begin to have visitation with your child even if they cannot be returned home. You should talk with your attorney in advance about this possibility and figure out what type of visitation works best for you.
Next, child support may end up being part of your case. If a relative of yours is temporarily caring for your child, the judge may order you to pay some amount of child support to help bridge the gap in costs that the relative is incurring daily while caring for your child. Be prepared to begin paying child support. This is true even if you are not working. Another aspect of the case will be the possible need for a home study.
A home study involves a psychologist or therapist interviewing you and your child in addition to any relatives or persons involved in your case period. From there, a report will be created and submitted to the judge for their review period. The recommendations made regarding permanent placement made by a social worker or therapist in this context can go a long way towards determining whether or not you will be able to have your child returned home to you. You can speak with your attorney about preparing for one of these interviews.
What happens in a status hearing?
The goal of a status hearing is to have a court review contents of service plans, rule on requested modifications to the Service plan, and enter court orders necessary to implement a Service plan. You can look at a Service plan as your road map to having your child returned home to you. The service plan will outline whatever services CPS is willing and able to offer to you and your family to remedy any issues that led to the removal of your child in the first place.
Although these services will be offered, you will need to avail yourselves of them. While your caseworker may work with you somewhat to ensure that you are following the Service plan, it is up to you to be accountable for this plan. Note that you will play a role in creating the plan, so there isn't much excuse for you're not participating once agreed to.
This is where a CPS case can begin to get very serious. It is my experience that at this stage of a case, an attorney for CPS will begin to review grounds for termination of your parental rights if you are not participating in the case and are not following the guidelines outlined in the Service plan. Termination of your parental rights means that you will not have any rights regarding your child to make decisions on their behalf or spend time with them. Essentially, it wipes away any legal rights you had to your child. Parental rights cannot be reinstated later.
A family court will determine what is appropriate moving forward regarding visitation, service plans, and what efforts have been undertaken to follow these service plans. You will have an opportunity to directly address the judge regarding any issues you would like regarding the Service plan. If there are any problems with your being able to follow the plan or if you have met any resistance from CPS in following the plan, you should voice those concerns at this time. You will have an opportunity to do so in the future, but a new hearing with CPS likely will not take place for some months. The judge will also review how well your child is adjusting to living outside the home depending upon their age and circumstances. Ultimately, the judge only determines whether it is appropriate for the state to continue to act as a temporary managing conservator for your child.
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 an excellent way for you to learn more about the world of Texas family law and the circumstances of your family, and how they may be impacted by the filing of a divorce or child custody case.
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