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The CPS Adversary Hearing (Monday, April 21, 2014)

Your Children Have Been Taken

You were visited by a caseworker who declared that your children are no longer safe in your care.  She took your children with her, and gave you some papers about a court date.

 

You don’t want to lose your children forever, and you’re terrified of what is going to happen at this hearing.  What do you do?

 

Don’t Panic!

This may sound like I’m asking you not to breathe, but this is a very important first step.  You may not believe me, but panicking, and being stressed out will not help your case whatsoever.  If it did, I would tell you to panic more just for good measure.

 

Right now, your children are relying on you to keep a level head because they need you to think clearly now more than ever.  The Texas Department of Family Protective Services (DFPS), also known as Child Protective Services (CPS) has the upper-hand, so if you want your children back, you’re going to have to stay calm.

 

Understand Your Rights

The first thing you need to understand is your right to an attorney.  You have the right to represent yourself and you do not have to be represented by an attorney, but I would highly advise against that.  In case you didn’t know, you have the right to a Court Appointed Attorney in nearly all CPS cases.  If you haven’t read our article on getting an attorney appointed, do that now.

 

The second thing you need to understand is that you have certain rights when CPS is interrogating you.  These include the right to refuse to take a drug test, the right to refuse when the CPS caseworker wants to search your home, and even the right to remain silent.  If you haven’t read our article on Fighting CPS Interrogations, do that now.

 

As a parent, you have a fundamental right, which is protected by the U.S. Constitution, to make decisions concerning the custody, care, and control of your children.  Do not be intimidated by CPS and allow them to trample on your rights that they are statutorily prohibited from violating.  The law says, “a state agency may not adopt rules or policies or take any other action that violates the fundamental right and duty of a parent to direct the upbringing of the parent's child.”

—See Limitations on State Agency Action—Tex. Fam. Code § 151.003

 

What is the Adversary Hearing?

The Adversary Hearing is the first real hearing after your children have been taken into possession by the governmental entity (CPS) and must take place within 14 days of the children being removed from your home.

—See Full Adversary Hearing; Findings of the Court - Tex. Fam. Code § 262.201(a)

 

Before the Adversary Hearing begins, the Judge is required to inform you of your right to be represented by an attorney, and if you are indigent, your right to have an attorney appointed to represent you.  If the Court appoints you an attorney, this hearing can be postponed for up to seven days to allow your newly appointed attorney time to prepare.

—See Full Adversary Hearing; Findings of the Court - Tex. Fam. Code §§ 262.201(a-1)-(a-2)

 

What Happens at the Adversary Hearing?

Well, I’m going to go ahead and give away the ending of the story first.  At the conclusion of the Adversary Hearing, the Judge shall return the children to your home, unless the Judge makes specific findings.

—See Full Adversary Hearing; Findings of the Court - Tex. Fam. Code § 262.201(b)

 

In the law, the word shall is a very powerful word, which means “must” or “no choice.”  Law makers do not use this word lightly, which is important for you to understand because the Judge shall return the children to your home, regardless of his/her personal feelings about you.

 

CPS has the burden of proof at the Adversary Hearing.  The purpose of this hearing is not to make you prove that you deserve to get your children back, but for CPS to prove that there is a continuing risk of danger to the children if they go home with you.

 

What Risk Does the Court Have to Find?

Remember, the Judge shall return the children to your home, unless the Judge finds “(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”

—See Full Adversary Hearing; Findings of the Court - Tex. Fam. Code § 262.201(b)(1-3)

 

You see, it is not enough for CPS to show that the children were in some sort of danger while in your custody, but also that reasonable efforts were made to prevent removal.  Additionally, CPS has to show that they have made reasonable efforts to return the children, but that there is a substantial risk of continuing danger if the child is returned home.

 

CPS often fails on points #2 and #3 above and routinely fails to offer any evidence of their efforts to keep children in the home.

 

What Can You do to Prepare for the Adversary Hearing?

Document, Document, Document!  You should be keeping a detailed journal of every interaction with CPS for your attorney because it will be easy to forget exactly what was said several weeks later.  You should be recording as well.  Any time CPS wants to speak with you, your cell phone should be on voice recorder mode for later proof of exactly what was said.

 

In case you didn’t know, Texas is a “one-party consent” state when it comes to voice recording.  This means that just one party to the conversation (you) has to consent to the recording.

 

You should point blank ask CPS every step that is required of you to enable your children to return home at the Adversary Hearing.  If the Judge hears that their demands are unreasonable, then obviously they are not in compliance with the statute.

 

--Authored by Matthew L. Harris, Esq.,

 

Matthew Harris Law, PLLC  - Family Law Division

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