The Hernandez & Hernandez law firm has years of experience representing parents, grandparents, children and others in CPS cases. We are ready to step in on your behalf should the need arise. The information below is not provided as legal advice on any specific case, but to give the reader an introductory understanding of the complexity of CPS cases and the absolute need to have counsel in such a case.
When first contacted by CPS
If you have been contacted by Child Protective Services (hereinafter “CPS” or “the Department”) in regard to any allegation relating to your own child or children, it is critically important that you retain an attorney immediately and before making any statement whatsoever to CPS. CPS, which is a branch of the Texas Department of Family and Protective Services (TDFPS), is an investigative and service agency which communicates with law enforcement on a regular basis. You must assume that any statement you make to CPS will eventually, if not immediately, be provided to law enforcement. CPS has also been known to interview parents in the presence of plain clothed law enforcement officers without identifying the officers and without reading the parents their Miranda rights ahead of time. We therefore advise parents to lawyer up before they are interviewed by Department personnel.
It is not unheard of for the Department to put a great deal of pressure on parents to get into their home and to interview them and their children after an initial report. The law permits the Department to see and speak to your children. If CPS comes to your door and insists on speaking to your children, you can either refuse or you can bring your children to the door and let the CPS investigator speak to them. Understand that if you refuse CPS may go seek a court order to get into your home to see the children or request the assistance of law enforcement. Even a police welfare and safety check does not permit government officials or law enforcement to walk into your home without permission unless they have either a warrant, a court order or probable cause that a crime has been committed.
CPS investigators may also suggest that your children will be removed from you if you do not speak with them or let them into your home before you lawyer up. The law does not require that you speak to the CPS investigator nor let the investigator into your home without a court order. If the Department takes your children it is because CPS already believes it can prove the requisite legal elements in court to obtain temporary custody of your children. In a case in which the Department has informed you that they are removing your child or children, do not interfere nor argue with Department personnel. That will look bad in front of the court. A hearing on whether the Department will be granted temporary custody of your child or children will be held within two weeks of removal and in the meantime you will be granted visitation. The most important thing for you to do is to get lawyered up immediately before making statements which may be used against you later in a civil CPS case or in some situations in a criminal child abuse or neglect case. While the information provided here is only designed to provide a general introduction to CPS cases, CPS case law is far too complex and individual cases are far too different from each other for a nonlawyer to handle a case on their own.
Types of CPS cases
1. CPS Investigation and Suit to Further the Investigation (Texas Fam. Code Chapter 261)
CPS cases begin with a CPS investigation. The investigation starts when someone makes a report to the Department of either child abuse or neglect. CPS is prohibited by law from revealing who made the report and nobody in the Department will ever tell you. Certain professionals such as medical and school personnel are even required by law to report abuse or neglect of children if they find out about it or suspect it.
There are many kinds of abuse such as physical abuse, sexual abuse, medical abuse or neglectful supervision. Within a day or two of the report a CPS investigator assigned to the case will begin to gather information to determine the merits of the allegation. If your child or children are old enough to be in daycare or school, you may not hear about the allegation until your child or children and their teachers, counselors, school nurses, doctors or daycare providers have already been interviewed. If your children are at home because it is summer, or for some other reason, you may hear from CPS immediately as they try to determine if the children are safe and everything is alright. CPS may also seek a court order under Chapter 261 of the Texas Family Code to obtain access to the children or some other cooperation from the parents or if the parents appear to be interfering with the investigation. The Department’s powers are limited in this regard but parents should obtain counsel to limit the Department’s overreach. CPS can also take legal action if the parents flee the jurisdiction.
Occasionally a CPS investigation will take a few days and be closed. More often an investigation will take a month to several months. The legal burden of proof that a CPS investigator must meet in determining if abuse or neglect has occurred is a very low one referred to as the “preponderance of the evidence” standard. That is to say, a CPS investigator needs only enough evidence or witness statements to determine that abuse or neglect more likely than not occurred to make a finding that there is Reason to Believe that abuse or neglect occurred. This is a much lower and easier standard to meet than the “beyond a reasonable doubt” standard required in criminal prosecutions. The four findings that can result from a CPS investigation are: 1) Reason to Believe; 2) Unable to Determine; 3) Ruled Out; and 4) Administrative Closure.
A Reason to Believe (RTB) finding is a finding that the Department believes that there does exist enough evidence to believe that a child or children was or were abused or neglected by their parent or guardian. An RTB finding has many legal consequences, such as one’s name going on state and national registries of child abusers. This can affect a person’s right to work in certain professions. Parents should obtain legal counsel immediately upon learning of such a finding if they have not done so already. There are deadlines for challenging such a finding and you should challenge the finding as quickly as possible. An RTB finding can lead to anything from a parent’s name being placed on the registry of child abusers to referral to Family Based Safety Services (FBSS) for voluntary services, to a lawsuit to force parents to undergo services to a lawsuit to terminate a parent’s parental rights and place the children up for adoption if court ordered services are not fully completed.
An Unable to Determine (UTD) finding is a finding that there is not enough evidence to find that there was abuse or neglect nor to rule it out. A UTD finding will not lead to a parent’s name being placed on the child abuse registry and so is not challengeable under state law.
A Ruled Out (RO) finding is a finding that the Department does not believe the alleged abuse or neglect occurred. Such a finding permits a parent to request that the CPS record of the investigation be expunged or erased. There is a deadline for expunging the record so parents should act immediately if they receive such a finding.
Administrative Closure (AC) occurs when the Department closes an unfinished investigation for some other reason. For example, if a parent in Texas alleges that a parent living in Mexico physically abused a child while in Mexico, such a case would likely be referred to DIF, the Mexican version of CPS, and the CPS case would be administratively closed.
2. Challenging a Reason to Believe Finding
The steps required in challenging a Reason to Believe finding for child abuse or neglect are very technical and should be handled by an experienced attorney. If an RTB finding is made and a parent does not wish to have his or her name appear on state or federal registries of child abusers, administratively appealing the finding and possibly a lawsuit are required. The administrative appeal process can take months or even years. However, failure to challenge an RTB finding always means that a parent’s name and the finding will be placed onto a child abuse registry which can be accessed by certain employers and other entities which deal with children, such as educational institutions, daycares, youth groups, medical offices or agencies and law enforcement agencies and can impact a parent’s employment or ability to be employed in certain fields.
In the First Stage of challenging RTB findings, a parent has 45 days from the day a “Reason To Believe” (hereinafter “RTB”) letter is mailed, to request an Administrative Review of Investigative Finding (hereinafter “ARIF”). Parents should ensure that when they get their findings letter they do not miss the appeal deadline. In theory, in Step 1, you are first allowed to try to resolve the matter with the supervisor and the investigator before an ARIF is conducted. In practice, the day a parent shows up for the meeting with the supervisor and caseworker, the actual ARIF or Step 2 is conducted so parents must be ready with all of their evidence. At the ARIF the RTB finding is reviewed and you have a right to appear, make statements, provide relevant written materials, ask questions and be represented by counsel. The reviewer then makes a determination as to whether the RTB finding is supported by a preponderance of the evidence, That is a very easy burden for a CPS investigator to reach so parents must be very prepared at the ARIF hearing.
If a parent loses at the ARIF hearing then Step 3 is to obtain a further review from the Texas Department of Family and Protective Services (“TDFPS”) Office of Consumer Affairs in Austin. Parents are not entitled to be present nor to present new evidence at that review so it is critical that a parent present all of their evidence at the initial ARIF.
If a parent is turned down by the Office of Consumer Affairs then they are pretty much stuck with the Reason To Believe finding until such time as the parent or the Registry has to disclose the “Reason to Believe” finding to a third party. An example is when a parent applies for employment and the potential employer asks the parent or the Registry if the parent has any prior CPS history. At that time, Step 4 kicks in and the parent is allowed a hearing before an Administrative Law Judge (ALJ) to try to overturn the finding.
Finally, if the ALJ finds against parents, in Step 5 parents are allowed to appeal the ALJ’s ruling to a civil court. If that fails, parents can work their way up the appellate courts in many other stages over many years.
3. Family Based Safety Services
If the Department finds Reason to Believe that a child or children has or have been abused or neglected but does not believe that the case requires CPS to remove and take immediate custody of the child or children, the Department will often attempt to provide the parents with voluntary services through Family Based Safety Services (FBSS). This phase of a CPS case will often mesh into the investigation itself as the investigator and FBSS worker attempt to get the parent to sign a Child Safety Plan or a Service Plan as well as a HIPAA (medical) and other release forms for the child’s or the parents’ records. Parents should, if at all possible, never sign any document without an attorney looking at it first. Child Safety Plans and Service Plans will often include terms which sound harmless but have the effect of keeping parents tied up in the CPS process for months. Examples are terms which require a parent to undergo psychological or drug and alcohol evaluations and follow all recommendations of the evaluators. On their surface these recommendations simply require a parent to be evaluated. In practice, however, parents are often tied to receiving services for months as mental health and drug and alcohol rehabilitation professionals selected by and contracted to CPS require parents to undergo months of therapy or counseling before they are released from their obligation to “follow all recommendations”.
Signing a CPS prepared HIPAA release form or other forms for a parent or a parent’s children can be just as problematic. In El Paso County, the CPS HIPAA and other release forms are extremely broad with check-off boxes that authorize the Department to access a large number of documents from a broad range of entities. Parents will often sign these forms without reading them and realize only afterwards just how broad CPS’s grasp is. Parents usually sign the form without dating it nor checking off any boxes. CPS will then date copies and check-off boxes as it wishes and send them to various entities including schools and hospitals among others. When parents finally realize just how much information CPS is acquiring about them or their children they are unable to stop it because the specific instructions on how to revoke the release forms are on the forms themselves and parents are almost never provided a copy of the forms.
Once a parent is in the FBSS stage, it is important not to simply refuse to do the services. Simply refusing to do the services will give the Department grounds to file a lawsuit under Chapter 264 of the Texas Family Code in order to get a court to order a parent to do services. An attorney well versed in CPS law should know how to balance CPS’s demands verses protecting parents’ rights and privacy.
On the other hand, if a parent is simultaneously facing criminal charges and involved in a CPS case, it is especially important not to answer questions or submit to CPS interrogation or investigation that will make the parent’s criminal case worse. Seek legal counsel immediately if you find yourself in this situation.
4. Court Ordered Services (Texas Family Code Chapter 264)
At a certain point, if CPS determines that a parent for whom a Reason to Believe finding for abuse or neglect has been made is simply refusing to do services or has violated an agreement to do services, the Department may sue the parent or parents to obtain a court order to force the parents to do the services. In court a parent can argue that he or she should not be ordered to do services or any more services than the services already done, and also which services the parent should and should not be ordered to do. After a parent is served with a copy of the lawsuit, that is to say the “petition,” the parent will be notified of the hearing date and time. If the parent is not ordered to do any further services, this should be the end of the case. If a parent is ordered to do additional services, an additional “compliance” hearing or hearings will be held so that the court can determine if the parent is complying with the court ordered services.
5. Court Ordered Services and the Suit to Terminate Parental Rights (Texas Family Code Chapter 262)
Perhaps the most well known type of CPS case is a lawsuit filed under Chapter 262 of the Texas Family Code. A Chapter 262 lawsuit is a suit to terminate a parent’s parental rights to his or her child or children. However, in most cases a 262 action is actually designed to force parents to do and complete services in order to reunite the children with the parents. Often times a CPS case will go right from the Reason to Believe finding to a Chapter 262 action due to the alleged severity of the case. At other times a 262 action may be started when parents simply refuse to do services and the legal elements are present for a court to grant CPS temporary custody of the children. Obtaining legal counsel as early as possible is critically important to try to avoid a CPS investigation turning into a lawsuit under Chapter 262.
Once a lawsuit under 262 is filed, it is important to prepare as quickly as possible for the Adversarial Hearing at which CPS will attempt to gain temporary custody of your children. If CPS is granted temporary custody, the Department may have custody for up to one year with a six month extension under certain circumstances and an additional period of up to six more months for the return and monitor period while CPS monitors the return of the children to the parents. Occasionally, CPS will agree to place the children with a qualifying relative of the parent while CPS is granted temporary custody of the children. This is referred to as a 262.113 lawsuit.
In the usual 262 lawsuit, the children are removed, the lawsuit is filed, the parents are served and the adversarial hearing is required to be held within two weeks. That is the time the parents have to prepare for a hearing that will determine who will have temporary custody of the children for the next one to two years so adequate and quick preparation for the hearing is critical. If CPS is not granted custody, the child or children are returned to the custodial parent. If CPS is granted custody, a visitation order and child support order will also be put in place so that the parents can see the children on a regular basis and begin to pay child support to the Department.
Once CPS has received temporary custody, a Family Service Plan meeting is held within one to two weeks to determine what services the parents must undergo and what obligations they must meet such as having full time employment and a suitable home for the children’s return. Shortly thereafter a status hearing will be held to order what services the parents are to undergo and to resolve any disagreements with regard to such services.
Thereafter, a Permanency hearing will be held every few months to report to the court on whether the parents are in compliance and whether the Department’s final goal remains family reunification or has changed to some other position such as kinship placement or termination of parental rights and adoption. Finally a final hearing will be held before the dismissal date at which the court or a jury will decide what will happen regarding parental rights.
Not all Chapter 262 cases involve the lengthy process described above. In some cases, a noncustodial parent with a clean background and no involvement in the allegations which gave rise to the CPS case will come in to the case to take custody of the children and CPS will nonsuit their case as long as the children are being cared for by the “non-offending” parent. In other cases, the allegations may be so egregious that CPS or one of the other parties in the case will file a motion based on “aggravated circumstances” to deny the parent or parents the right to do services and move immediately to terminate parental rights. An example of such a case is where a child is determined to have had a number of broken bones which occurred at different times and for which a parent has no good explanation. If the court finds “aggravated circumstances,” the Department is not required to provide services to the parent or parents and can move right to a trial to terminate parental rights in order to place the child or children up for adoption.
The information above is not provided as legal advice on any specific case but to give the reader a general understanding of the complexity of CPS cases and the absolute need to have counsel in such a case. The Hernandez & Hernandez law firm has years of experience representing parents, grandparents, children and others in CPS related matters and is ready to step in on your behalf should the need arise.