I. DO I NEED A LAWYER IF CPS ISN'T LOOKING TO TERMINATE MY PARENTAL RIGHTS?
"YES", and here is why:
A) A large portion of the cases that begin with the goal of reunification ultimately turn into termination cases; often at the last minute. CPS may base their decision on a countless factors, from a failure to complete services to the results of a court ordered psychiatric evaluation. If this were to happen to you, you would be forced to scramble to find an attorney who would be willing to step in at the last minute. Needless to say, an attorney who is hired at the last minute would not be in the best position to address problems which occurred early on in the case.
B) A large part of an attorney's work consists of acting as an intermediary/facilitator between the parent and the agency, as well as challenging Judges who are in the habit of "rubber stamping" CPS's requests. Hiring an attorney early on can avoid many problems and miscommunications, and can prevent things from getting worse. (back to top)
2. SHOULD I CONSENT TO CPS BEING NAMED THE TEMPORARY MANAGING CONSERVATOR OF MY CHILDREN?
Only rarely do I consent to CPS being named Temporary Managing Conservator. At the adversary hearing, CPS must prove that:
(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and
(3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home. Tex. Fam. Code §262.201.
The adversary hearing is the only meaningful time that you get to contest the allegations made against you. This is because that during a termination trial, even if the agency did not have grounds to remove your
children, it can still seek to terminate your parental rights based solely on your failure to complete court ordered services (Fam. Code. §161.001 (O)).
EVEN IF YOU DID NOTHING WRONG, YOUR RIGHTS CAN BE TERMINATED DUE TO YOUR FAILURE TO COMPLETE A PARENTING PLAN. (back to top)
3. CAN CPS TAKE MY CHILDREN I AM A VICTIM OF DOMESTIC VIOLENCE?
Technically, YES. A mother's rights can be terminated when there are allegations of domestic violence against the mother. However, because this dually punishes mothers, allows criminal prosecutors to blackmail women into cooperating with criminal prosecutions, and is supported by controversial and often conflicting evidence - it is not clear that such exposure actually causes emotional damage to children - any attempt by CPS to remove children based solely on allegations of domestic violence against the mother must be met by swift action. By consulting an attorney early on, you may be able to prevent CPS from being named your children's Temporary Managing Conservator in such a case.
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4. SHOULD I CALL CPS IF I NOTICE THAT FAMILY MEMBERS ARE NOT TREATING THEIR CHILDREN PROPERLY?
Calling CPS should be viewed as an option of last resort, as a call to CPS can generate unwanted intrusion not only into the life of the target of the complaint, but also the lives of that person's extended family. By consulting with an attorney first, a family can learn about alternative ways to protect their loved ones without the need for governmental intrusion.
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5. WHAT IF I AM A NATIVE AMERICAN?
It is extremely important that you inform your lawyer if you are Native American as you may be entitled to increased protection under the Indian Child Welfare Act or ICWA. As ICWA recognizes the importance of the relationship of an Indian Child with his/her tribe, the application of ICWA gives a higher preference to family placements and makes it significantly harder for CPS to terminate parents' rights. These protections are so dramatic that it may even be possible for a parent to regain post-termination parental rights where the court failed to properly apply ICWA guidelines. If you think that ICWA applies to your case, to insure that your rights are protected, it is important that you consult an attorney who is familiar with the ICWA and its application in Texas.
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Don't risk the future of your family by burying your head in the sand. If you are being targeted by CPS based on allegations of abuse or neglect, or you are being asked to present your child for an examination, or even if you are simply being asked to complete a Family Service Plan, you need legal representation - and you need it now!
Call 713-260-9645 or email the experienced TDFPS/CPS attorneys at Unger & Hershkowitz for a free consultation. We understand how traumatic CPS involvement can be, and we will fight to help you keep your children.
