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How can a mother lose a CPS custody battle?

There are two different directions that a Child Protective Services (CPS) case can take in Texas. That direction depends largely upon whether CPS believes that your child can be kept safely at home. If your child can be kept at home in the opinion of CPS then Family Based Safety Services (FBSS) will be referred to your case. At that point, your child will be able to remain at home while you and your co-parent/spouse work on whatever skills are believed to be necessary for you all to parent and protect your children successfully.

On the other hand, if after an initial investigation it is believed that your child cannot safely remain in your home then your case will be transferred to a conservatorship unit within CPS. This phase of a case displays that CPS will be attempting to win temporary managing conservatorship over your child and may eventually try to terminate your parental rights. That would mean that you would have no legal relationship with your child any longer and would not be their legal guardian or parent.

Reading that in black and white can take your breath away. As a parent, it is inconceivable that one day I could be told by a judge that my child is no longer “my child.” However, this is a real-life situation that you may currently be facing as you stare down a Texas CPS case. Not knowing where to turn for information or guidance can cause you to feel like you are trying to walk on a tightrope without a net beneath you. To avoid falling and taking your child down with you it would be wise to slow down and start to build your knowledge base about this subject.

It doesn't truly matter if you are a mother or a father. The truth is that you can lose custody of your children, even temporarily, in a CPS Case if the agency believes that you are a safety threat to your child's well-being. This is not a decision that will be rushed. This is not a decision that will be made without evidence. However, it can be a decision that is impactful for your family in a way that goes well beyond having your child out of your home for a relatively short period. We are talking about issues that could impact the nature of your relationship with your child for years to come.

With that backdrop laid down, the attorneys with the Law Office of Bryan Fagan would like to take some time to discuss with you how it is possible to lose custody of your child to CPS during one of their investigations. This is not a situation that you want to find yourself in but if you are in a CPS case your best opportunity to end the case with your child in your home is to prepare yourself diligently beforehand.

What is conservatorship?

We hear about a term called custody quite a bit but not necessarily that much about conservatorship. Conservatorship is the legal term for custody. Judges, attorneys, and the public generally use custody more frequently. However, conservatorship is the term that would be utilized in your CPS case were it to go before a judge. If CPS would like to move forward and attempt to win conservatorship rights over your child, they must first file a Suit Affecting the Parent-Child Relationship (SAPCR). The agency would be asking a Texas family law court to name it as the temporary managing conservator of your child. A conservator is someone who could make decisions for another person and to decide where that person lives.

Before you reach the point where CPS will ask a court to be named as the temporary managing conservator of your child the caseworker from CPS and their supervisor will talk about the need to remove your child from your home and whether that can be avoided. An attorney from CPS will also likely be involved in the conversation. While CPS will have an attorney already on staff you may not be able to afford one immediately. In that case, you will be able to ask the court to appoint you a lawyer depending on whether or not the court finds you indigent.

What does temporary managing conservatorship mean in the context of a CPS case? It means that CPS will be able to take temporary custody of your child and remove him from your home. Likely, the agency will also request permission to be able to make educational and medical decisions on behalf of your child while he is in their possession. This will allow them to take your child to the doctor if need be and to enroll your child in another school if that is more practical given his situation.

A plan of service will need to be completed by you before your child can return home. A plan of service means different things to different people depending upon the circumstances of your case. For instance, if your child was removed from your house due to a dangerous condition in the home the plan may be for you to simply fix a broken floorboard or remove an animal that had bitten him. On the other hand, the plan of service may be more detailed if your child was removed for something more in-depth.

Could CPS ask the court to terminate your parental rights?

To be able to win temporary managing conservatorship of your child, CPS will need to first file a petition with the court. The petition is the document that begins the whole case known as a Suit Affecting the Parent-Child Relationship (SAPCR). It is possible that within that petition CPS asks the court to terminate your parental rights. This is not a sure thing, keep this in mind. Most CPS cases do not end with the parental rights of a parent being terminated. However, if you do not pay attention to the details of your service plan or do not complete certain criteria contained in that plan then your parental rights may be terminated as a result.

An adversary hearing will likely be the first step that you go through to be able to present your side of a case to a judge. A guardian ad litem or attorney ad litem will be appointed between the removal date and this hearing date. This attorney or guardian will be appointed to represent the interests of your child. While it can seem strange to say, your child may have interests that are adverse to your own. The guardian or attorney ad litem will act as the eyes and ears of the court and will recommendations to the judge based on their interactions with your child.

Another person that may become involved in the case is known as a Court Appointed Special Advocate (CASA). This special advocate may serve in addition to the guardian ad litem or may be the ad litem him or herself. As we mentioned earlier, this CASA volunteer and the guardian ad litem will learn as much as possible about your child and their wishes in conjunction with the case. Their concerns about being outside their home, their transition into a new school or home life, and any other relevant details of the case will all be factors worth discussing with the court. This person can review paperwork filed with the court or meet with your child without your consent.

Where will your child go if he or she is removed from your home?

An obvious question to ask at this stage of a case is where your child will go to live while he or she is no longer living with you. CPS must place your child with a relative or friend of your family so long as it is safe to place your child with that person. You can inform the judge of any persons that you would like to have considered for this role in an initial hearing. Or you may want to start thinking of a list even before your child has been removed if you have been alerted to the fact that your child will be removed from the home.

Be sure that any person who you recommend to CPS can pass a criminal background search as well as a clean history of CPS itself. A home study will need to be conducted of that person's home to determine suitability for your child.

What happens in an initial hearing?

If CPS is named as the temporary managing conservator of your child at an initial hearing, then temporary orders will be issued to define your role as a conservator and the role of CPS as a conservator. You can ask the court to be named as the temporary possessory conservator of your child which would allow you to retain some rights and duties in the court order. As we talked about a moment ago, you will also be instructed on what courses or other requirements you must complete having your child returned home to you.

Usually, the services required of you to take in conjunction with a CPS case are aimed at addressing a specific problem or reason why your child was removed in the first place. If you have an addiction to drugs or alcohol, then substance abuse counseling may be the most logical intervention required in temporary orders for you to complete before the court will consider reuniting you with your child.

At different stages of a CPS case, certain elements are optional for parents like yourself. Family Based Safety Services are optional. However, a service plan like this after the removal of your child is not optional for you to complete. If you fail to complete the coursework, then your child will not be returned home, and your parental rights would probably be terminated. At the very least your parental rights would probably be severely limited because you failed to have completed the necessary courses or counseling.

Finally, temporary orders will likely contain at least one of the following provisions concerning your child. First is temporary child support. Just as you or your co-parent may have been ordered to pay child support in a prior child custody or divorce case, you may also be ordered to pay child support to the new caretaker for your child. Whether that be a foster family, friend, or family member of yours, you could be ordered to pay child support in conjunction with this CPS case.

Temporary orders for visitation may be allowed for you and your family. Again, this depends in large part on the specific circumstances of your case. If your child has been removed from your home because you have abused him or her then the amount of visitation that you and your family are awarded by the judge would likely be nonexistent or minimal- at least at first. However, in other circumstances, you may have more continuous and consistent visitation with your child.

If you have provided the names of persons that you would like to be considered for placement during the case, then those folks may be listed in the temporary orders. If you just provided those names at an initial hearing, then the court and CPS would not yet have had an opportunity to investigate their suitability for placement. While those persons are being reviewed by the court and CPS your child may be placed with a foster family for the time being. Your attorney can request another hearing or a response from the court on the suitability of those persons for a reasonable period after the initial hearing.

If your child’s physical or mental health is an issue in the case he may be examined by a doctor, counselor, or nurse to provide a status update for CPS, the court, and your family. Your child may need ongoing treatment to treat a psychological condition. This could be useful information if you were either unaware of that need or lacked the resources to provide that type of care to your child. CPS can likely provide you with information about resources available to you in your area.

Permanency Goals in a CPS Status Hearing

Approximately 60 days after your child is removed from your home a second hearing will be held to provide all parties with an update on the case. You and your co-parent will be required to attend the hearing. Your progress being made in completing the plan of service will also be scrutinized. Remember that you will also be able to submit the names of any potential relatives or friends who could be placement options for your child.

CPS will also submit a permanency plan for your child at this hearing. The permanency plan will reflect what CPS believes to be in the best interests of your child. Typically, this plan involves the reunification of your child with you and your family. However, depending on the progress made in completing your plan of service that may not be the case. There will be a backup permanency plan that is submitted to the court in case the primary permanency plan does not work out.

Permanency plans include family reunification, adoption, permanent managing conservatorship to a relative or suitable individual, or another planned permanent living arrangement. Adoption could be to a person that your child knows or to a person unrelated to your family. The same could be true for naming another person as the permanent managing conservator. Another person could act as the primary conservator of your child while you act as a possessory conservator. There is also a possibility that a foster family or CPS itself could be named as the primary conservator of your child.

The status hearing is your best opportunity relatively early in the process to establish that you are doing what you need to do in terms of completing the plan of service and taking advantage of all the visitation opportunities that you have with your child. This will go a long way towards helping you show the judge that you are taking the case seriously and want to do what it takes to have your child returned home to you.

Whatever stage of a CPS case you find yourself in, it can be helpful to have an experienced family law attorney by your side. Specifically, you need an attorney who has served parents in your position who are working hard to ensure the safety and well-being of their child in a CPS case. CPS cases can be tricky to manage and have a lot of moving pieces. Make sure your attorney is ready to take on that kind of challenge.

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 experienced 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 opportunity for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.

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