The Texas Department of Family and Protective Services, sometimes called Child Protective Services, has three approaches to cases if they proceed beyond the investigation phase. Two of these approaches involve court proceedings, but the third does not.
Because DFPS employees oversee a large number of cases, communication and coordination with DFPS requires an additional effort on the part of parents and attorneys. However, despite excessive caseloads, DFPS employees are generally good people that want to assist children that may or may not be in dangerous homes. Communicating and working with DFPS early on in the investigation phase when no real incident of abuse has occurred can make a crucial difference in how DFPS proceeds with a case. If a parent does not communicate with DFPS, the department is left only with the allegations of abuse, which may or may not be true. In these situations, DFPS may proceed with a court case simply based on an inability to properly investigate.
DFPS may seek a termination of one or both parents’ rights in a court proceeding. These cases have a statutorily mandated timeframe of one year so the court must seek to resolve these cases within one year of the case being filed. Within that year, one or both parents will be ordered to complete an array of services such as parenting classes and outpatient drug rehabilitation programs in an effort to reunify the child with his or her parents. Usually in these cases, DFPS was awarded conservatorship or custody of the child early in the case, and one or both parents seek to demonstrate to the court over the course of a year or less that the child should be reunited with them.
The court may extend the statutory deadline by six months in certain situations. For example, a parent may have finally succeeded in demonstrating that he or she should be reunified with his or her child in the eleventh month of a case. In such a situation, the court may extend the deadline of the case six months in order to provide the parent with a custodial trial period in which the court and DFPS will monitor the parent and child prior to eventually resolving the case in favor of the parent or proceeding with the termination of parental rights.
A parent may qualify for appointed counsel at the beginning of such a case in a number of circumstances. If the parent is absent and cannot be found, an attorney will be appointed to represent the parent’s interests in his or her absence. Additionally, if a parent cannot afford an attorney, the court may appoint an attorney for them.
An individual that the court finds can afford an attorney would need to hire counsel to secure legal representation in these situations. Also, a parent may wish to hire counsel rather than be represented by the appointed attorney.
Non-parents, such as relatives who want the child to be placed with them, may hire an attorney to represent their interests in court, which may be at odds with the interests of both DFPS and the child’s parents at times. Relatives, unlike parents, do not have the right to a court appointed attorney. This hired attorney may pursue a custody modification outside of the termination proceedings and appear in the termination matter due to its relation to the custody modification. DFPS does favor placing children with relatives and family friends, but will not initiate a custody modification on behalf of the placement.
Unfortunately, the petition in a court ordered services case can be identical to that of a case that seeks to terminate parental rights. This occurs because the attorney representing DFPS does not wish to have to alter the pleadings to include termination should the case escalate to a termination of parental rights. This means that the petition served on the parent may be somewhat deceptive, and a court ordered services case might be mistaken for a termination of parental rights and vice versa. Communicating with DFPS should lead to a clear answer on their current posture in the court case.
In these cases, DFPS is asking the court to order that one or both parents complete an array of services such as parenting classes and outpatient drug treatment. The court will order the services that it believes are appropriate based on the evidence presented to it. If a parent does not comply with the court’s orders or more evidence of danger to the child emerges, the case may escalate to a termination of parental rights case.
In these cases just as in termination cases, the court may appoint an attorney for each or both of the parents. Parents may not qualify for appointed counsel or wish to hire counsel rather than be represented by an appointed attorney. Non-parents who wish to have the children placed with them will not be eligible for appointed counsel and may wish to hire an attorney to represent their interests in both the DFPS proceeding and a custody modification suit. DFPS does favor placing children with relatives and family friends, but will not initiate a custody modification on behalf of the placement.
When DFPS takes the Family Based Services approach to a case, a court is not involved. In the absence of a court, DFPS relies on the agreement of the party being investigated to complete services and develop a safety plan. For example, a safety plan could take the form of the parent, who is being investigated, agreeing to place the child with a relative or family friend while they complete services such as parenting classes or an outpatient rehabilitation program.
Unfortunately, DFPS does not have a particular interest in honoring the visitation established by a prior court order because they rely simply on the agreement of the parent being investigated. If the parent being investigated will not agree to place the child with the non-custodial parent, then DFPS will simply accept an agreement that places the child with a relative or family friend. In this situation, DFPS will probably ask the non-custodial parent, who is not being investigated, and any other adult residing in the same residence to complete a home study and a background check before allowing the child to visit the non-custodial parent or designating the non-custodial parent as an appropriate placement for the child.
In a family based services case, DFPS does not have the authority to relocate a child without the consent of the parent with the right to designate the child’s primary residence. Therefore, despite completing a home study and passing a background check, the child cannot be placed with the non-custodial parent unless the other parent consents. In these situations, a non-custodial parent must file a child custody modification suit and seek to become the custodial parent if they wish to be the placement for the child. A court will not appoint an attorney in such a situation because it does not fall within one of the two categories in which an individual may qualify for appointed counsel in a family law matter, which are when a person faces a contempt action for failure to pay child support or DFPS is attempting to terminate an individual’s parental rights.