Dallas Bar Association

Understanding CPS Investigations and Litigation

by Michelle Warmbrodt

Child Protective Services (CPS) matters are an important component of the practice of family law. If you are an attorney wanting to branch into the CPS arena or have been hit-up for CPS legal advice by a friend or relative, having a roadmap through the statutes and some practice pointers will help get you on your way.

People generally find themselves involved with CPS because someone has contacted law enforcement or CPS directly and reported child abuse or neglect. By ringing your doorbell, calling on the phone, or visiting a child at school, CPS is trying to determine the veracity of an abuse or neglect allegation and also assess the risks, if any, that are posed to the child involved. If you are representing the investigated parent, please read Chapters 107 and 262 of the Texas Family Code as well as Title 40, Chapter 700 of the Texas Administrative Code. Many contingencies can arise in a CPS case, and understanding these statutes will help you confirm whether you are following the right course of action for your client.

One’s best chance for avoiding CPS litigation and their child going to foster care is being cooperative during the investigation and alleviating CPS’s concerns about the child. CPS investigations include interviews of the accused individual, the child, and others who are well-acquainted with the child’s family. CPS will often ask people to sign a release for their medical and other personal records and will probably want to see the child’s home. CPS will make a determination of whether or not it believes child abuse or neglect has occurred. It will also determine if it believes the family should be further monitored and/or assisted by CPS or if the child should be removed from the home.

While conducting its investigation, CPS will make a judgment call whether to remove the child from the parent. A removal could, and likely will, occur before the investigation is complete. If a child is removed, CPS must file a Suit Affecting the Parent-Child Relationship (SAPCR), have an initial hearing, and obtain an emergency order from the court to keep the child in CPS custody. The initial hearing is often held just a few moments after CPS files the SAPCR but must take place within one working day of the child's removal. Section 262.106 of The Texas Family Code (TFC) allows the hearing to be ex parte and for CPS to submit its proof by sworn petition or affidavit.

Following the initial hearing, TFC § 262.201 requires the court to conduct a full adversary hearing where CPS must present evidence against the parent if CPS is seeking temporary managing conservatorship of the child. This hearing must take place within 14 days of the date that CPS took the child into its possession. The full adversary hearing is a mini trial that, depending on the court, could last anywhere from 20 minutes to a week or more. At the conclusion of that hearing, the court will determine if the child should be returned to the parent or should remain in CPS’s care while the SAPCR is pending.

Of course, your client’s goal should be to avoid litigation altogether by successfully satisfying CPS during its investigation that the child has not been abused or neglected and that there is no future risk to the child. Below are some practice pointers on how to keep your client’s family intact:

1.         Thoroughly interview your client and determine the accuracies and inaccuracies of the allegations.

2.         Send a letter of representation to CPS directing them to contact you instead of your client directly and request notice of any court appearances.

3.         Consider possible criminal implications for your client and advise him to seek advice from a defense attorney.

4.         Prepare your client to meet with CPS.

5.         Make sure the client’s home and yard is clean and free from safety hazards.

6.         Teach your client to be respectful and not defensive.

7.         Devise a plan with the client that puts protective, corrective or preventative measures in place that guarantee the child’s safety and well-being.

CPS is an enormous agency, but there is no need to feel out-matched when faced with an investigation or litigation. As in any case, preparing your client and understanding the applicable statutes supports your best chance for success.

 

Michelle Warmbrodt is a former Assistant District Attorney and a partner at Warmbrodt & Associates, PLLC. She can be reached at michelle@wrattorney.com.

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