CPS Defense
Ashley Basnett is a highly experienced attorney in child welfare law. Ashley Basnett has represented parents and children in suits involving Child Protective Services. Ashley Basnett also represented Child Protective Services for nearly 3 years. During that time she has litigated countless hearings before a Judge and has been successful in all 5 jury trials that she has tried. We understand that you might have many questions when it comes to child welfare law and CPS; therefore, we have provided you with you to answers to several commonly asked questions. We encourage you to contact Reeve Augustine Alarakhia, PLLC with any questions you may have.
What should I do if I have concerns that my child is being abused or neglected?
Texas law states anyone who believes that a child is being abused, neglected, or exploited must report it to the Department of Family and Protective Services (CPS). You can make a report to CPS by calling 1-800-252-5400 or online by visiting https://www.dfps.state.tx.us/Contact_us/report_abuse.asp. The hotline is available 24 hours a day, 7 days a week. A person who reports suspected abuse or neglect in good faith is immune from civil or criminal liability. Anyone who does not report suspected abuse or neglect can be held liable for a misdemeanor or felony. You also do not need to worry about being named as the reporter of the abuse or neglect because the law requires that identifying information concerning the reporter is confidential. If you believe that your child might die or sustain substantial bodily injury without immediate intervention, you should call 911 and involve the local authorities.
What happens after an allegation of abuse or neglect is made to the Department of Family and Protective Services?
It depends on the severity of the allegation. If the allegation states that a child might die or might sustain substantial bodily injury without intervention by CPS, CPS must respond immediately. However, if you have a concern that a child might die or sustain substantial bodily injury without intervention by the Department of Family and Protective Services, you should call 911 before you call CPS to ensure immediate action. If the allegation is just short of a concern of death or substantial bodily injury, CPS must respond within 24 hours. All other referrals to CPS will be responded to within 72 hours.
What do I do if I find out that the Department of Family and Protective Services is investigating me for possible abuse or neglect?
Consult with an attorney immediately. It is important to know what your rights are. If at all possible, do not speak with anyone from CPS until you have consulted with an attorney. Everything that you say and do can and will be used against you and can result in your child being removed from your custody. If you do not want CPS to speak with your child(ren), you can and should state to CPS that you do not give your consent to speak with your child(ren). At that point, CPS cannot speak with your children unless they have a court order allowing them to do so.
What does an investigation by CPS look like?
CPS opens up a case each time a referral is received. An investigator is then assigned to the case and the investigator reaches out to all relevant parties by telephone and/or in person to gather more information. The investigator will also likely try to visit the child(ren) and speak with the child(ren). If you consent to the investigator seeing and speaking with your child(ren), during the visit with the child(ren), the investigator will evaluate the physical appearance of the child(ren), looking for any physical marks, appropriate clothing and suitable nutrition. The investigator will also talk with the child(ren), if the child can speak. This conversation will take place outside of your presence, unless you request that it be done with you present. The investigator can access your child(ren) while they are in school or daycare without notification to the parents, provided that you have not informed CPS that they cannot speak with the child(ren) without a court order.
An investigator can also visit the alleged offending parent’s home, announced or unannounced, to determine if the home is suitable for the child(ren) and to further investigate the allegations. At the end of an investigation, a disposition is made by CPS. The following are most likely dispositions upon the conclusion of an investigation by CPS:
1. Reason to Believe – This means that CPS believes that the child(ren) has been or is being abused and/or neglected.
2. Unable to determine – This means that CPS was able to complete their investigation, but CPS has insufficient evidence to determine whether or not the child(ren) has been or is being abused and/or neglected.
3. Unable to Complete – This means that CPS was not able to complete their investigation, and therefore, is not able to make any determination whether or not the child(ren) have been or is being abused and/or neglected..
4. Ruled Out – This means that the department does not believe that the child(ren) has been or is being abused or neglected.
Do I have to talk to CPS or allow CPS in my home?
The Texas Family Code states that “a person may not interfere with an investigation of a report of child abuse or neglect” conducted by CPS; however, this does not mean that you have to let the investigator into your home. The investigator may even come to your home with a police officer and ask to come into your home and inspect your home. Unless the police officer has a warrant to search your home or CPS has a court order stating that they can come into your home, you do not have to agree to anyone inspecting your home. It is important to note, however, that if you deny CPS access to the child(ren) or your home or you refuse to answer any questions, CPS may seek a court order to enter your home with the assistance of law enforcement and/or a court order to remove the child(ren) from your home.
Please keep in mind that the more information that you provide CPS, the more information that could potentially be used against you. If drugs and alcohol are a concern, the investigator can also request that you submit to an oral swab drug test. You can refuse to submit to the oral swab drug test; however, CPS will operate under the assumption that the oral swab drug test would have been positive.
This assumption is not admissible in the Court of low. CPS can obtain a court order for you to drug test; however, CPS has to show good reason to a Judge to obtain such an order.
What happens if CPS makes a disposition of Reason to Believe on my case?
There are two possible scenarios when CPS makes a disposition of Reason to Believe on a case. The first scenario is referring your case to Family Based Social Services. Family Based Social Services is a voluntary program that requires the following:
1. Your child must be placed with a relative or fictive kin;
2. You cannot have unsupervised visitation with your child;
3. Your visitation can be limited in duration and frequency; and
4. You must agree to participate in services to help stabilize your family and reduce the risk of future abuse or neglect to the child. These services can include, but are not limited to: drug and alcohol assessment, counseling, anger management, parenting classes and a psychological assessment.
You cannot participate in Family Based Social Services if:
1. You do not have a relative or fictive kin that your child can be placed with;
2. You do not agree to participate in Family Based Social Services; or
3. There is an immediate threat/danger to your child’s physical health and/or emotional wellbeing.
The second scenario is that an attorney for CPS files a law suit against you and requests the court for the immediate removal of your child. If CPS is successful in their request for removal of your child from your custody, then your child will be removed from your care and placed into foster care, unless you have a suitable relative or fictive kin that is willing to take in your child. The relative or fictive kin must pass a background check and may even need to have a home study completed on them by CPS. Sometimes the removal happens so quickly that CPS does not have time to run the appropriate background checks and home studies on relatives or fictive kin prior to the removal of the Child; therefore, the child is placed in a foster home. If your child is not initially placed with a relative or fictive kin, CPS can place
your child with a relative or fictive kin at any time in your case.
Can CPS remove my child(ren) without a court order?
Yes, provided that CPS meets the legal standard required for an emergency removal. The Texas Family Code provides that CPS can remove a child from a parent without a court order the circumstances “would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physician health or safety of the child”. If a child is removed without a court order, The Texas Family Code then requires CPS to go before the Court on the first business day following the date that the child was taking into care by CPS to show that the circumstances “would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physician health or safety of the child”.
This hearing may be ex-parte, meaning CPS can be the only party to present information to the Court. If the Court grants CPS’ request and issues an order removing the child from the home, then an evidentiary hearing will be set within 14 days where CPS must prove that they met the legal standards for removal as set forth in Section 262.107 of the Texas Family Code.
My child was removed from my care by CPS, is there anything that I can do to get my child back?
YES! Texas law states that CPS must have a hearing within 14 days of your child being removed from your care to provide you with the opportunity to contest the removal of your child from your custody. It is important that you request a court appointed attorney or retain an attorney before your hearing as the hearing is filled with intricate issues and this hearing is the inly time where you can truly contest the
removal of the child.
In the event that you agree to the removal of your child or you lose your contest of the removal, you also have the opportunity to have your child returned to your custody if you are willing to cooperate with CPS and work certain services. These services can include, but are not limited to:
1. Alcohol and drug assessment
2. Counseling (individual and/or family)
3. Anger management
4. Psychological evaluation
5. Parenting classes
How long can my case with CPS take?
On average, a case with CPS takes 8 months to a year. The Texas Family Code sets forth that a CPS must be resolved within one year or else the case will be dismissed. A CPS case can be extended by law past the one year limit in several different ways, including but not limited to an extension granted by the Court and the Court grants a monitored return of your child.
How does COVID-19 affect my case?
There are certain aspects of your case that can and cannot be affected by COVID-19.
The following are items that COVID-19 does not affect in your case:
1. The timing of your hearings: Because the Texas Family Code sets forth when all of your hearings must be held, the Court must comply. This means that the Adversary/Show Cause Hearing, Status Hearing, Permanency Hearings and Final Trial must all still be held, despite COVID-19.
2. Your right to a jury trial: Despite the fact that most jury trials in the State of Texas have been suspended due to COVID-19, it does not affect your right to have a jury trial in your case. This might mean that your case will be extended by law to accommodate your right and request.
3. Burden of proof: CPS will still be held to the same burden of proof. CPS must still prove by clear and convincing evidence that (1) a ground for termination exists; and 2) termination is in the best interest of the child.
The following are items that COVID-19 can affect in your case:
1. Visitation: Due to COVID-19, your visitation with your child can be limited to video conference visitation. The frequency may also be affected.
2. Services: COVID-19 has caused may business to shut down or operate on a limited basis. This means that several of your services on your service plan are now impossible to complete.
3. Location of your hearings: In order to comply with social distancing, Court hearings are now mostly being done via video conference. While this can be more convenient, this method is not accessible to everyone. It also means that you cannot discuss any matter freely with your attorney unlike in hearings where everyone is present before the Court.
If CPS is involved with you and your family, call Reeve Augustine Alarakhia at 903-887-0602.
**Disclaimer – The information on this website is not legal advice. Legal information is not the same and legally advice, which is the application of law to an individual’s specific circumstances. The information of this website is not a substitute for, and does not replace the advice or representation of, a licensed attorney. Although Reeve Augustine Alarakhia goes to great lengths to make sure that the information on this website is accurate and up to-date, we make no claim as to the accuracy of this information and are not responsible for any consequences that may result from the use of this website. Further, the use of
this website does not create an attorney-client relationship between Reeve Augustine Alarakhia and any user.