Drug Testing: Court Ordered, CPS, & Probation

Over the years, a number of people have asked me questions about drug testing. Here I will attempt to address some of the recurring questions I have been asked on this subject:

1) Do I have to submit to urinalysis (“UA”) when the Court, CPS caseworker, or my probation officer, tells me to?

The short answer is: “yes”. Most drugs will leave your urine within 72 hours so when CPS or probation requests a urine test, they will demand that you take the test within a specified time period. Failure to take the test within that time period will be regarded as a “positive” test, (i.e., dirty urine) .

2) How long will marijuana leave detectable traces in my urine?

Depending on your metabolism, marijuana stays in your system for approximately 30 days.  However, I’ve seen it last for almost 45.

3) What if I drink a lot of water to flush out my system?

Extreme fluid intake will change your electrolytes, which will be detected by the urine test. CPS or probation will consider a “diluted negative” test as a “positive”.

4) Do I have to go to the testing facility that CPS or probation requests?

Yes. However, labs are not infallible, and if you have real or serious doubts about the veracity of the test results at the lab you were sent to, you may get your own tests performed at a reputable facility for a comparison. If you decide to do this, make sure that you ask your lab for a “business records affidavit” so that your lawyer can use the results in court. Also, it is important that you take your own test at or about the same time as you take the test demanded by CPS or probation, because, if you don’t, they will argue that your test isn’t a real comparison, and that it is not useful or vaild to dispute the results from their lab’s tests.

5) If I dye or straighten my hair, will that effect the results of a hair follicle exam?

No.

6) If I shave my head, or if I have a weave, will that prevent the lab from being able to test me?

No, they will get hair from another place on your body.

7) What if I shave my body?

They will get hair from where-ever they can. However, if there truly is no hair available, they may consider that a positive.

8)How far back in time will a hair follicle test measure?

Generally, CPS asks for a 3 month look back. However, in some cirumstances a “zero tolerance” test will be ordered, which could go back 6 months or more.

9) What if I can’t pee with someone watching me?

You must try. Pretend that you are alone. A failure to provide a sample may be considered a positive.

10) When it comes to drug testing, is there a difference between head and body hair?

Yes. It’s easier to gauge a 3 month lookback period with head hair. Body hair grows slower, which may increase the lookback period.

THE IMPORTANCE OF DOCUMENTATION

Let me begin by stating that it is the equivalent of suicide for a parent to appear in court without a lawyer when fighting CPS.  Having said that, if you are unfortunate enough to find yourself in such a situation, it is important that you don’t take the Judge’s pleasant demeanor as an indication that things are going your way.  It is equally important that you are not shy about reciting your efforts regarding the service plan or about potential placements with family or fictive kin (close family friends).

Having frequently been retained on CPS cases at the 11th hour, I am never surprised when a parent questions why their child is in foster care despite there being many family members and friends who are willing and capable of caring for their child.  Moreover, when caseworkers are confronted, they usually respond that no one ever told them, despite the fact that parents and grandparents are able to provide detailed descriptions of when, where and who they told. This problem becomes exacerbated when, cases get passed from caseworker to caseworker.

The Sloth Rule:  Caseworkers are overworked and it’s much easier for them to maintain the status quo then to actually have to put some effort into a case.

So, if you are fighting CPS, remember the basic rule:

 

DOCUMENT, DOCUMENT, DOCUMENT

 

Never rely solely on oral communications as undocumented communications are too easy to ignore or discount as never having been made.  With respect to placement, request to fill out CPS’s official forms and if no forms are available, write it down.   You should also document your efforts via e-mail and/or by getting it filed with the court.  Remember: DOCUMENT, DOCUMENT, DOCUMENT because if there is no proof, CPS can easily say that it didn’t happen.

Family Based Services (FBSS)

The Texas Department of Family and Protective Services (TDFPS) defines family based services as those “designed to maintain children safely in their homes – or make it possible for children to return home – by strengthening the ability of families to protect their children and reducing threats to their safety”.

          I frequently receive calls from people telling me that their caseworker has referred their case to FBSS and then asking me whether they need to hire an attorney.  As an attorney with a good deal of experience dealing with FBSS, my answer is a resounding “Yes.”  Why?  Because once you agree to work services, everything in your life will be subjected to intense scrutiny…for a prolonged period.  If you thought that the investigation leading up to the referral was intrusive, actually dealing with FBSS is MUCH worse.  Not only that, but your failure to successfully complete services very likely will show up in the future as grounds to support the possible “removal” of your children.

Sounds scarey, doesn’t it?  It is, and it is the reason you need an attorney to assist you.

Most people don’t realize how much power TDFPS has until they are caught in its web.

          Now that you have made the determination that hiring a lawyer is a wise investment to help ensure that your family will stay together, what should you look for?  Here are just a couple of the questions that you should ask when considering a lawyer:

1)  Does the lawyer handle only court cases, or does she also have significant experience with investigations and FBSS? This is crucial as many lawyers only have court related experience and therefore have no, or only limited, experience with FBSS.

2) Does the lawyer have a generalized knowledge of Family Law in the event that your case doesn’t proceed as planned?  This is also important as there are many things that an attorney can do to derail a caseworker’s strategy to try and remove your children.

I realize that initially you may have “sticker shock” when you are informed about a lawyers rates – my rates, by the way, are very favorably competitive with the rates most lawyers quote to potential clients – especially when you find yourself in a situation that you are convinced is not of your making.

However, when you are staring down the barrel of the caseworker’s loaded gun, and after making the right decision to call a lawyer, the question you then should be asking is not whether you can afford to hire a lawyer, but whether you can afford not to!

 

Fighting CPS in Court? Be Prepared!

Fighting CPS is unnerving under the best of circumstances, and the stresses of a courtroom battle only compounds the situation. That being said, there are some things that you can do to minimize the stress.

Prepare your lawyer – help your lawyer to help you!

Make sure that your attorney is prepared by letting her/him know exactly what has been going on in your life as well as your children’s lives. This requires open lines of communication with your attorney, and, if you have any interaction with CPS before retaining an attorney, you should document all of your actions both with respect to your services and your communications with the caseworker, and then make sure that your attorney has all of these details at least a few days before she/he walks into court. A failure to communicate fully with your lawyer not only will mean that your lawyer will know less than the CPS caseworker(s), but it may result in your lawyer being ill-equipped to challenge any lies or half-truths that the caseworker(s) might tell in court.

Prepare yourself – this won’t be fun!

Be mentally and emotionally prepared to hear unpleasant things said about you in court. It is extremely rare for a caseworker to give glowing and positive reviews about any parent’s progress. That being said, if you are mentally and emotionally prepared, you will be able to weather the storm, and to keep from losing your temper in court, which would only serve to negatively compound an already bad situation. Requiring the Judge or the bailiff to tell you to “calm down or leave the courtroom” will not help your cause. This brings us back to point (1); Help to Prepare Your Lawyer – if your lawyer is prepared, she/he will be better able to counter the kinds of lies or half-truths that most certainly will drive you crazy when you hear them in court.

Bring family members with you to court – family support is what it’s all about!

Unfortunately, because CPS has complained about you, the court may be predisposed to believe that you are not a caring parent, or that your family life is not nurturing or supportive. Judges can be persuaded otherwise when they observe family interest and support. Having family support in court sends a strong positive message, and it makes it more difficult for CPS to argue that the children need to go into foster care.

Dress “appropriately” – you don’t want to be “mis-judged”!

In line with point (3), above, everything you do in court sends a message and, like it or not, you are being judged personally. You’re in court to fight because you want to take responsibility for your children, so why not dress responsibly? So, if you are headed to court, do a serious assessment of your appearance. Dress as conservatively as you can, and make sure that your hair and nails are “court-appropriate”. If you have any doubts, don’t wear it.

Bend over backwards to be nice – you’re playing in their ballpark! Anyone who loves their children would be offended by an accusation that they have not been a good or responsible parent. Unfortunately, while the Judge, or the CPS caseworker, can get away with being rude or snarky, you can’t. We know you are there to fight, but realize that you have to do it nicely. Remember, CPS has an incredible amount of power and a bad evaluation from a caseworker can be damning.