Family Law & Child Protective Services: From Start to Trial

Feb 3, 2020 | CPS, Family Law | 0 comments

Remember the hypothetical family in the “vodka tonic incident” outlined in our last post? Fast forward to the aftermath. After that night, the couple decides to get divorced. However, the wife also calls Child Protective Services, who investigates and opens a case. Both parents are parties to the case, and the husband is CPS’ initial target (the “offending parent”). The wife (the “non-offending parent”) also calls the police, and they, along with the district attorney’s office, investigate and file charges. The husband is then indicted for felony injury to a child and charged with misdemeanor assault against the wife.

However, this story takes yet another turn. All criminal charges against the husband are dropped, and the husband informs CPS that the wife abuses prescription drugs. As a result, the CPS case is dismissed against the husband, but not against the wife (who called CPS in the first place). Now, the wife is the “offending parent” in the eyes of CPS, and the father is in the clear. The lesson here is to be careful about inviting CPS into your life. CPS cases are filled with opportunities to advance a family law case or divorce, and not always in your favor.

Our goal is to manage dual CPS and family law cases

There are different objectives based on who we represent. If it’s the offending parent, they need to cut ties with CPS as quickly as possible. That might be achieved through dismissal of the CPS case based on evidence that the court shouldn’t be concerned about our client (in terms of custody, possession, and child safety). Or, we might want to flip the CPS case, and make the parent who reported to CPS the target.

For example, the parent who called CPS may abuse prescription drugs to the point where he or she is unable to property care for the child at times. In this case, the parent who called CPS could end up being the “offending parent” in a CPS investigation.

If we represent the non-offending parent, then the reality is that CPS cases protect children who are at risk. If your children are at risk due to an offending parent, then it may be perfectly appropriate (or even required) to involve CPS in your family law or divorce case. CPS is a government entity with the vital mission of protecting children against abuse and neglect, and failing to report abuse or neglect can also lead to unintended consequences.

Let’s say that our client (a non-offending parent) knows abuse or neglect is occurring but fails to notify CPS. However, someone else reports to CPS, and the client is now the offending parent for knowing that abuse or neglect was occurring while failing to report it to CPS (“negligent supervision”).

CPS plays an important role in protecting Texas children against abuse and neglect, but they are all too often used as pawns in family law and divorce cases to achieve parents’ own objectives. As the example above demonstrate, however, inviting CPS into your family’s life can lead to unintended consequences.

Every stage of a CPS case is an opportunity for advocacy

After a call has been made to the CPS statewide intake, the investigation stage begins. CPS determines whether abuse or neglect occurred, and issues one of five findings:

  • Reason to Believe (RTB): a determination that abuse or neglect did occur, which results in CPS opening a case.
  • Ruled Out: a determination that abuse or neglect did not occur, which closes the case.
  • Unable to Determine: there is not enough evidence to prove that abuse or neglect occurred, but too much evidence to Rule Out that abuse or neglect occurred, and so the case is closed.
  • Unable to Complete: CPS can’t locate the offending parent, and so the case is closed.
  • Administrative Closure: CPS determines children are currently safe (even if something happened in the past).

The non-offending parent needs to achieve a “Reason to Believe” finding in a CPS case

CPS will assign both an investigator and a caseworker, and obtaining a Reason to Believe (or RTB) finding can often be done by winning over the caseworker. This means, among other things, staying in contact with the caseworker yourself and through your lawyer. It also means your lawyer advocating on your behalf and providing the caseworker with evidence to persuade them. Whenever possible, we hand CPS a case with a bow tied around it. Why is this necessary?

If CPS issues a Reason to Believe (or RTB) finding of child abuse or neglect, then the offending parent will be fighting an uphill battle in the family law case on child-related issues, as well as property ones if it’s a divorce. In terms of child-related issues, they might lose conservatorship and be limited to supervised visits only with children. A Reason to Believe (RTB) finding in a CPS case when divorce is involved can also lead to the offending parent receiving less than 50% of the community estate and having to pay post-divorce spousal support (similar to alimony) to the non-offending parent.

Even if CPS does not issue a Reason to Believe (RTB) finding against the offending parent, CPS may still help the non-offending parent in a separate family law case, such as divorce. For example, the non-offending parent might still subpoena the CPS caseworker to testify in a family law case. In that case, an experienced CPS and family law attorney can use the CPS caseworker’s testimony to show that concerns remain even though no Reason to Believe (RTB) finding was issued against the offending parent. For example, it’s very important to ask about the concerns the CPS caseworker had about the offending parent, and why. Also find out if the offending parent did anything to alleviate those concerns, and whether or not the CPS caseworker still has them.

The next stage is Administrative Review of Investigative Findings (ARIF), in which the offending spouse may challenge a Reason to Believe (RTB) finding. The offending parent should take advantage of this hearing to clear themselves early in the process, but, unfortunately, it’s rarely done.

The next stage sometimes involves hearings in a Court Ordered Services (COS) case, in which the state will return the children if the parents complete certain services. These might include individual therapy, parenting courses, a psychological evaluation, a Drug and Alcohol Abuse Evaluation (OSAR), or random drug testing. Typically, though not always, the offending parent is best served by cooperating with CPS to complete these services as quickly as possible, which typically, though not always, will result in children being returned to the offending parent.

The non-offending parent needs to cooperate

This is not the time to stand by your offending partner. Imagine a situation where a child dies, and the wife is arrested for murder. Even though the husband insists the child died from a medical condition, CPS believes the child died from physical abuse. As a result, CPS moves to terminate both the wife’s and the husband’s parental rights to the surviving children. You’ve got to cooperate! Make sure to complete any services as soon as possible, which may include a domestic violence course for victims, or individual therapy.

The offending parent also needs to cooperate, but with caution. Make sure to go through your lawyer. Go above and beyond the court ordered services to alleviate CPS’ concerns. For example, if CPS is concerned with you about drug abuse, and there’s a court order for monthly random drug testing, you should go beyond that and get tested twice each month. Make sure to complete any services as soon as you can so the case can be dismissed as soon as possible.

A few final words of caution

Child abuse and neglect happens all the time, and many of us see it regularly. Report child abuse and neglect if you see it, and please be aware that you may be a mandatory reporter if you are, for example, a lawyer, teacher, or therapist. Remember that CPS exists to protect children. However, if you’re not required to report, think hard before bringing CPS into your life. You can not only lose control from the litigation perspective, but you can also lose control over your children’s future.

If you’re unsure of how to proceed, give Scott Thompson at Thompson Law a call for an honest assessment of your best option, so you can be sure you’re doing the right thing while making sure you stay out of harm’s way.

Amicable when possible, aggressive if necessary.

Everyone’s situation is unique. Some people need a facilitator, some people need a negotiator, and some people need a tough trial lawyer to go to court. I let my clients know the different paths available to them based upon their situation, and work with them to design a unique strategy and tactics to meet their goals and objectives.

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