What are the stages of a CPS case?

Every case starts with a call or online submission to the statewide abuse and neglect hotline. The Department of Family and Protective Services (DFPS) then decides whether to investigate.

During the investigation, a DFPS employee visits the child’s home to determine whether there are safety risks to the child. An investigation may be closed or referred to Family Based Safety Services (FBSS), or the child may be removed from the home.

During FBSS, the family works to put protective measures in place, which could include voluntarily placing the child with a relative or one of the adults voluntarily moving out of the home. Then, the family completes services, like parenting classes and counseling, until DFPS believes there are no more safety risks and the case can be closed.

If DFPS believes the child is at immediate risk of serious harm, the child may be removed and placed into foster care. Shortly after that, the court appoints attorneys for indigent parents and the child holds a hearing to determine if there are legal grounds to remove the child. At that time, the court may dismiss the case or grant Temporary Managing Conservatorship (TMC) to DFPS. TMC gives temporary custody of the child to the State.

The court could also order Participation in Services (PIS). A PIS case largely resembles FBSS because DFPS does not have temporary custody of the child. However, in PIS the parents are ordered to do services and to report back to the court regularly on their progress. If parents do not comply with services or the situation gets worse, the court may still grant TMC to DFPS and remove the child.

During TMC the child’s caseworker is the primary person who makes decisions for the child, including placement, education, and medical services. The parents are given a service plan to address the reasons the child came into care; failure to complete the service plan may result in the termination of parental rights. The court regularly holds hearings to check on the wellbeing of the child and on the parents’ progress. After 12-18 months, the court must make a final determination as to what happens with the child’s case. The court may dismiss the case, or the parents may lose their rights, either by relinquishing or by the court terminating them. Parents also have a right to a jury trial to determine the outcome of the case. Any parent whose rights are involuntarily terminated has a right to appeal. The final possibility is that the parents’ rights are not terminated, but the child enters long-term foster care, or Permanent Managing Conservatorship (PMC).

At the conclusion of TMC if the case is not dismissed, the child enters PMC. At that time, the judge decides whether to keep the child’s attorney on the case. If the parents’ rights are terminated, DFPS works to find a long-term placement for the child, either through adoption or giving custody to a relative. Sometimes the PMC period is used to allow parents to keep working on services to demonstrate their ability to care for the child, but parents are not entitled to an attorney during this time, and the standard for getting the child back can be difficult to meet. Thus, the parents’ rights may continue to be severely curtailed indefinitely while the child remains in DFPS custody. Unfortunately, some children stay in PMC for many years and ultimately age out of foster care.

Why do parents and children get attorneys once CPS is involved?

Parents have a constitutional right to the care and custody of their child. When the government interferes with that right by taking a child away and placing the child into foster care, there are certain protections for the parents. In Texas, parents who cannot afford an attorney are provided a court-appointed attorney at no cost. Typically, each parent, including an alleged or unknown father, is granted a separate attorney. It is the parent’s attorney’s job to advocate for an appropriate service plan, request discovery, participate in mediation, represent the parent in hearings, and leverage any other legal tools to support the parent’s position. In Texas, after a child is removed, an attorney ad litem is appointed to represent the child, and often a guardian ad litem is also appointed.

What is the difference between an attorney ad litem and a guardian ad litem for a child?

An attorney ad litem for a child represents what a child wants while a guardian ad litem represents what is best for the child. Many times, what the child wants and what is “best” are not necessarily the same. When a child is too young or cannot express their wishes, an attorney may serve in both roles. The attorney ad litem can set hearings, subpoena witnesses, get records from schools and medical providers, file motions, and use other legal tools to ensure the child’s voice is heard and his or her needs are met. A guardian ad litem cannot call witnesses or cross-examine witnesses in a hearing, but can actually be called as a witness. The guardian ad litem makes recommendations to the court and can engage in other methods of informal advocacy both inside and outside the courtroom.

How is FCAC different from Child Advocates?

Child Advocates volunteers operate as guardians ad litem in CPS cases. Typically, volunteers work on one case at a time and make recommendations to the court about what is “best” for the child. Child Advocate volunteers are extremely valuable outside of the courtroom because they can devote time and resources to ensuring the child’s needs are met.

In contrast, FCAC primarily operates as an attorney ad litemappointed by the court. This means we have the full range of legal tools available to be the child’s voice in court and to hold DFPS accountable for meeting the child’s needs. However, FCAC is also available to be appointed as guardians ad litem in cases where a certain level of expertise would be beneficial to the case.

Why does the child need an attorney if they have a CASA/Child Advocate or guardian ad litem?

Because a child has very little control over their life while in foster care, it is important that they have some form of input into the decision-making process, which happens through the attorney ad litem. More practically, the CASA or Child Advocate can only make recommendations to the court. If something is wrong, for example, if there is a problem with the placement, the attorney can set a hearing, file a motion for a new placement, and call witnesses to support the move to a new placement. The CASA or Child Advocate has to wait for an attorney to set a hearing, and then has to wait to be called on to explain why a new placement is needed. Additionally, attorneys for the child can work with other attorneys in the Medicaid system or education system to ensure the child is receiving all of the services he or she is entitled to receive.

Why is it important for a child to have an attorney when they are in PMC?

Though appointment of an attorney ad litem or guardian ad litem is discretionary once a child enters PMC, this is often when they need an advocate the most. For example, an attorney can ensure the placement is appropriate or advocate for the child to live with a relative whom DFPS may not have considered. A child who spends many years in foster care has countless school changes and therapeutic needs where an attorney can be beneficial in securing services. Especially for older teens aging out of foster care, an attorney can help address legal barriers to give the youth the best chance at a successful adulthood.

Under what circumstances does a parent get a guardian ad litem?

A court may appoint a guardian ad litem for a parent when there are concerns about competency, either because of intellectual functioning or mental illness. Like a guardian ad ad litem for a child, the guardian ad litem for a parent can act as a witness and an advocate but cannot use any legal tools. In our practice, we often serve as guardians ad litem for parents to ensure DFPS is complying with the Americans with Disabilities Act in accommodating the parent and that the parent is not a victim of undue discrimination during the proceedings.

Can I hire FCAC to represent me?

Yes! Parents going through investigations or FBSS, or who are dissatisfied with their court-appointed attorney, can hire us on a sliding payment scale depending on ability to pay. As a nonprofit organization, the cost of representation helps us assist children or other individuals who cannot afford to retain an attorney.

Does FCAC represent foster parents or relatives of families involved with CPS?

At this time, we do not represent foster parents or family members seeking to be a part of an ongoing CPS case.

Does FCAC do adoptions?

When a child in foster care is adopted, the court appoints an amicus attorney for the child, and the adoptive parents may also have an attorney. FCAC accepts amicus appointments by the court and can also represent parents adopting a child out of foster care. FCAC does not do private adoptions.