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Government employees must be trained on US Constitution

Public Law 108-477 SEC. 111
(a) The head of each Federal agency or department shall—

(1) provide each new employee of the agency or department with educational and training materials concerning the United States Constitution as part of the orientation materials provided to the new employee; and

(2) provide educational and training materials concerning the United States Constitution to each employee of the agency or department on September 17 of each year.

(b) Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

“When the people no longer read or understand their Constitution, then they will live in a POLICE STATE” –Robert Wangrud.

Original documentation of Public Law 108-477, Section 111, can be found on Page 4 of the following url: http://www.gpoaccess.gov/serialset/creports/pdf/108-792/108-792_p537-638_divj.pdf..

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Posted by admin - December 22, 2010 at 3:19 am

Categories: General Abuse Laws   Tags:

Parent Representation in Child Abuse and Neglect Articles

Quality representation and due process for all parties in the child welfare system are essential, but not always achieved. Too often child welfare policy and case by case decisions are made without meaningful input from parents or their advocates.The National Project to Improve Representation for Parents Involved in the Child Welfare System aims to strengthen representation of parents in the child welfare system.

Parent Representation Standards of Practice

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Posted by admin - December 13, 2010 at 1:27 am

Categories: Child Abuse Laws, Find A Local Attorney   Tags: , , , , ,

What is a search warrant and when is it necessary?

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of “the premises at 11359 Happy Glade Avenue between the hours of 8 a.m. to 6 p.m.” and direct the police to search for and seize “cash, betting slips, record books, and every other means used in connection with placing bets on horses.”

How Police Obtain Search Warrants

Police officers obtain search warrants by convincing a judge or magistrate that they have “probable cause” to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called “affidavits,” which report either their own observations, or those of private citizens or police undercover informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.

The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker and, if necessary for the officer’s safety, conduct a frisk for weapons (but not do a full search).

When Search Warrants Aren’t Required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn’t apply at all.

Consent Searches

If the person in control of the premises freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.

Many disputes about consent have to do with who has the right to consent. If there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord lacks authority to consent to a search of leased premises. The same is true for hotel operators.

On the other hand, an employer can validly consent to a search of company premises, which extends to an employee’s work area but not to clearly private areas such as an employee’s clothes locker. A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don’t.

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is “in plain view” if the officer has a right to be where the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search “incident to an arrest.” After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy.

Police may sometimes also make what’s known as a “protective sweep” following an arrest if they have a reasonable belief that a dangerous accomplice might be hiding inside a residence. When making a protective sweep, police officers can walk through a residence and make a “cursory visual inspection” of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view during the sweep.

The Emergency Exception

As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:

  • An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
  • Following a street drug arrest, an officer enters the house after the suspect shouts into the house, “Eddie, quick, flush it!” The officer arrests Eddie and seizes the stash.
  • A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.
  • A police officer “in hot pursuit” of a fleeing suspect continues the chase into the suspect’s dwelling in order to make the arrest.

In these types of emergency situations, an officer’s duty to protect people and preserve evidence outweighs the warrant requirement.

Allowing Police to Make a Warrantless Search

A search warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter a home or building without a warrant, a person should not risk injury or a separate charge of “interfering with a police officer.” Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer’s actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction, the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can “frisk” the occupants for weapons if the officers have a “reasonable suspicion” that the occupants are involved in criminal activity and are reasonably concerned for their safety.

For More Information

To answer all your questions about the legality of various police searches and seizures, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman (Nolo).

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Posted by admin - December 7, 2010 at 2:49 am

Categories: General Abuse Laws   Tags: , ,

Services to families in crisis and how states get reimbursed

SERVICES TO FAMILIES IN CRISIS – AS MANDATED BY 42 U.S.C. § 671 (a) (15) and 672 (a) (1)an agency cannot be reimbursed for the cost of a child’s out-of-home care unless the reasonable efforts requirement is met.

§ 671. State plan for foster care and adoption assistance

  • (a) Requisite features of State planIn order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which -
    • (1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
    • (2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;
    • (3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
    • (4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;
    • (5) provides that the State will, in the administration of its programs under this part, use such methods relating to the establishment and maintenance of personnel standards on a merit basis as are found by the Secretary to be necessary for the proper and efficient operation of the programs, except that the Secretary shall exercise no authority with respect to the selection, tenure of office, or compensation of any individual employed in accordance with such methods;
    • (6) provides that the State agency referred to in paragraph (2) (hereinafter in this part referred to as the “State agency”) will make such reports, in such form and containing such information as the Secretary may from time to time require, and comply with such provisions as the Secretary may from time to time find necessary to assure the correctness and verification of such reports;
    • (7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;
    • (8) provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan to purposes directly connected with (A) the administration of the plan of the State approved under this part, the plan or program of the State under part A, B, or D of this subchapter (including activities under part F of this subchapter) or under subchapter I, V, X, XIV, XVI (as in effect in Puerto Rico, Guam, and the Virgin Islands), XIX, or XX of this chapter, or the supplemental security income program established by subchapter XVI of this chapter, (B) any investigation, prosecution, or criminal or civil proceeding, conducted in connection with the administration of any such plan or program, (C) the administration of any other Federal or federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need, (D) any audit or similar activity conducted in connection with the administration of any such plan or program by any governmental agency which is authorized by law to conduct such audit or activity, and (E) reporting and providing information pursuant to paragraph (9) to appropriate authorities with respect to known or suspected child abuse or neglect; and the safeguards so provided shall prohibit disclosure, to any committee or legislative body (other than an agency referred to in clause (D) with respect to an activity referred to in such clause), of any information which identifies by name or address any such applicant or recipient; except that nothing contained herein shall preclude a State from providing standards which restrict disclosures to purposes more limited than those specified herein, or which, in the case of adoptions, prevent disclosure entirely;
    • (9) provides that the State agency will -
      • (A) report to an appropriate agency or official, known or suspected instances of physical or mental injury, sexual abuse or exploitation, or negligent treatment or maltreatment of a child receiving aid under part B of this subchapter or this part under circumstances which indicate that the child’s health or welfare is threatened thereby; and
      • (B) provide such information with respect to a situation described in subparagraph (A) as the State agency may have;
    • (10) provides for the establishment or designation of a State authority or authorities which shall be responsible for establishing and maintaining standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and provides that the standards so established shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter;
    • (11) provides for periodic review of the standards referred to in the preceding paragraph and amounts paid as foster care maintenance payments and adoption assistance to assure their continuing appropriateness;
    • (12) provides for granting an opportunity for a fair hearing before the State agency to any individual whose claim for benefits available pursuant to this part is denied or is not acted upon with reasonable promptness;
    • (13) provides that the State shall arrange for a periodic and independently conducted audit of the programs assisted under this part and part B of this subchapter, which shall be conducted no less frequently than once every three years;
    • (14) provides (A) specific goals (which shall be established by State law on or before October 1, 1982) for each fiscal year (commencing with the fiscal year which begins on October 1, 1983) as to the maximum number of children (in absolute numbers or as a percentage of all children in foster care with respect to whom assistance under the plan is provided during such year) who, at any time during such year, will remain in foster care after having been in such care for a period in excess of twenty-four months, and (B) a description of the steps which will be taken by the State to achieve such goals;
    • (15) effective October 1, 1983, provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home;
    • (16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements described in section 675(5)(B) of this title with respect to each such child; and
    • (17) provides that, where appropriate, all steps will be taken, including cooperative efforts with the State agencies administering the plans approved under parts A and D of this subchapter, to secure an assignment to the State of any rights to support on behalf of each child receiving foster care maintenance payments under this part.
  • (b) Approval of plan by SecretaryThe Secretary shall approve any plan which complies with the provisions of subsection (a) of this section.

(Amendment to above)

COATS (AND WYDEN) AMENDMENT NO. 4909 (Senate – July 18, 1996)

[Page: S8227]

Mr. ROTH (for Mr. Coats, for himself and Mr. Wyden) proposed an amendment to the bill, S. 1956, supra; as follows:

At the end of chapter 7, of subtitle A, of title II, add the following:

SEC. . KINSHIP CARE.

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)) is amended–

(1) by striking `and’ at the end of paragraph (16);

(2) by striking the period at the end of paragraph (17) and inserting `; and’; and

(3) by adding at the end the following new paragraph:

`(18) provides that States shall give preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards.

END


§ 672. Foster care maintenance payments program

  • (a) Qualifying childrenEach State with a plan approved under this part shall make foster care maintenance payments (as defined in section 675(4) of this title) under this part with respect to a child who would meet the requirements of section 606(a) of this title or of section 607 of this title but for his removal from the home of a relative (specified in section 606(a) of this title), if -
    • (1) the removal from the home occurred pursuant to a voluntary placement agreement entered into by the child’s parent or legal guardian, or was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and (effective October 1, 1983) that reasonable efforts of the type described in section 671(a)(15) of this title have been made;
    • (2) such child’s placement and care are the responsibility of
      • (A) the State agency administering the State plan approved under section 671 of this title, or (B) any other public agency with whom the State agency administering or supervising the administration of the State plan approved under section 671 of this title has made an agreement which is still in effect;
    • (3) such child has been placed in a foster family home or child-care institution as a result of the voluntary placement agreement or judicial determination referred to in paragraph (1); and
    • (4) such child -
      • (A) received aid under the State plan approved under section 602 of this title in or for the month in which such agreement was entered into or court proceedings leading to the removal of such child from the home were initiated, or
      • (B)(i) would have received such aid in or for such month if application had been made therefor, or (ii) had been living with a relative specified in section 606(a) of this title within six months prior to the month in which such agreement was entered into or such proceedings were initiated, and would have received such aid in or for such month if in such month he had been living with such a relative and application therefor had been made. In any case where the child is an alien disqualified under section 1255a(h), 1160(f), or 1161(d)(7) (FOOTNOTE 1) of title 8 from receiving aid under the State plan approved under section 602 of this title in or for the month in which such agreement was entered into or court proceedings leading to the removal of the child from the home were instituted, such child shall be considered to satisfy the requirements of paragraph (4) (and the corresponding requirements of section 673(a)(2)(B) of this title), with respect to that month, if he or she would have satisfied such requirements but for such disqualification.(FOOTNOTE 1) See References in Text note below.
  • (b) Additional qualificationsFoster care maintenance payments may be made under this part only on behalf of a child described in subsection (a) of this section who is -
    • (1) in the foster family home of an individual, whether the payments therefor are made to such individual or to a public or nonprofit private child-placement or child-care agency, or
    • (2) in a child-care institution, whether the payments therefor are made to such institution or to a public or nonprofit private child-placement or child-care agency, which payments shall be limited so as to include in such payments only those items which are included in the term “foster care maintenance payments” (as defined in section 675(4) of this title).
  • (c) “Foster family home” and “child-care institution” definedFor the purposes of this part, (1) the term “foster family home” means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State having responsibility for licensing homes of this type, as meeting the standards established for such licensing; and (2) the term “child-care institution” means a nonprofit private child-care institution, or a public child-care institution which accommodates no more than twenty-five children, which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing or approval of institutions of this type, as meeting the standards established for such licensing, but the term shall not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.
  • (d) Children removed from their homes pursuant to voluntary placement agreementsNotwithstanding any other provision of this subchapter, Federal payments may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of children removed from their homes pursuant to voluntary placement agreements as described in subsection (a) of this section, only if (at the time such amounts were expended) the State has fulfilled all of the requirements of section 627(b) of this title.
  • (e) Placements in best interest of childNo Federal payment may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of any child who was removed from his or her home pursuant to a voluntary placement agreement as described in subsection (a) of this section and has remained in voluntary placement for a period in excess of 180 days, unless there has been a judicial determination by a court of competent jurisdiction (within the first 180 days of such placement) to the effect that such placement is in the best interests of the child.
  • (f) “Voluntary placement” and “voluntary placement agreement” definedFor the purposes of this part and part B of this subchapter, (1) the term “voluntary placement” means an out-of-home placement of a minor, by or with participation of a State agency, after the parents or guardians of the minor have requested the assistance of the agency and signed a voluntary placement agreement; and (2) the term “voluntary placement agreement” means a written agreement, binding on the parties to the agreement, between the State agency, any other agency acting on its behalf, and the parents or guardians of a minor child which specifies, at a minimum, the legal status of the child and the rights and obligations of the parents or guardians, the child, and the agency while the child is in placement.
  • (g) Revocation of voluntary placement agreementIn any case where -
    • (1) the placement of a minor child in foster care occurred pursuant to a voluntary placement agreement entered into by the parents or guardians of such child as provided in subsection (a) of this section, and
    • (2) such parents or guardians request (in such manner and form as the Secretary may prescribe) that the child be returned to their home or to the home of a relative, the voluntary placement agreement shall be deemed to be revoked unless the State agency opposes such request and obtains a judicial determination, by a court of competent jurisdiction, that the return of the child to such home would be contrary to the child’s best interests.
  • (h) Aid to families with dependent childrenFor purposes of subchapters XIX and XX of this chapter, any child with respect to whom foster care maintenance payments are made under this section shall be deemed to be a dependent child as defined in section 606 of this title and shall be deemed to be a recipient of aid to families with dependent children under part A of this subchapter. For purposes of the preceding sentence, a child whose costs in a foster family home or child-care institution are covered by the foster care maintenance payments being made with respect to his or her minor parent, as provided in section 675(4)(B) of this title, shall be considered a child with respect to whom foster care maintenance payments are made under this section.

REASONABLE EFFORTS MANDATES – a “safeguard’ to parents and children that families not be traumatized due to needless separation from each other

  • …by inexperienced, ill-trained or racially-socioeconomically-gender biased Child Protection caseworkers or officials.

IN THE EVENT OF ‘EMERGENCY REMOVAL’ of a child from his home – a “safeguard’ to parents and children that due process will be guaranteed by informed, unbiased judiciaries, who are to mandate accountability for ‘reasonable efforts’, that ‘Child Protection’ agencies be mandated:

  • to prove compliance with ‘reasonable efforts’ and not merely accept a preprinted form submitted by Child Protection agencies, for a ‘rubber-stamped approval’ by the court , thereby denying the parent and child due process rights to present evidence to the contrary.

The family courts, almost without fail – accepts preprinted ‘reasonable efforts’ forms from caseworkers…without question


TITLE I–REASONABLE EFFORTS AND SAFETY REQUIREMENTS FOR FOSTER CARE AND ADOPTION PLACEMENTS

SEC. 101. CLARIFICATION OF THE REASONABLE EFFORTS REQUIREMENT.

(a) In General.–Section 471(a)(15) of the Social Security Act (42 U.S.C. 671(a)(15)) is amended to read as follows:

”(15) provides that–

”(A) in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern;
”(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families–

”(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and
”(ii) to make it possible for a child to safely return to the child’s home;

”(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child;
”(D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that–

”(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse);
”(ii) the parent has–

”(I) committed murder (which would have been an offense under section 1111(a) of title 18, United States Code, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;
”(II) committed voluntary manslaughter (which would have been an offense under section 1112(a) of title 18, United States Code, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent;
”(III) aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter; or
”(IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent; or

”(iii) the parental rights of the parent to a sibling have been terminated involuntarily;

”(E) if reasonable efforts of the type described in subparagraph (B) are not made with respect to a child as a result of a determination made by a court of competent jurisdiction in accordance with subparagraph (D)–

”(i) a permanency hearing (as described in section 475(5)(C)) shall be held for the child within 30 days after the determination; and
”(ii) reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child; and

”(F) reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts of the type described in subparagraph (B);”.

(b) Definition of Legal Guardianship.–Section 475 of such Act (42 U.S.C. 675) is amended by adding at the end the following:

”(7) The term ‘legal guardianship’ means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decisionmaking. The term ‘legal guardian’ means the caretaker in such a relationship.”.

(c) Conforming Amendment.–Section 472(a)(1) of such Act (42 U.S.C. 672(a)(1)) is amended by inserting ”for a child” before ”have been made”.
(d) Rule of Construction.–Part E of title IV of such Act (42 U.S.C. 670-679) is amended by inserting after section 477 the following:

42 USC 678

”SEC. 478. RULE OF CONSTRUCTION.

”Nothing in this part shall be construed as precluding State courts from exercising their discretion to protect the health and safety of children in individual cases, including cases other than those described in section 471(a)(15)(D).”.

SEC. 102. INCLUDING SAFETY IN CASE PLAN AND CASE REVIEW SYSTEM REQUIREMENTS.

Title IV of the Social Security Act (42 U.S.C. 601 et seq.) is amended–

42 USC 622.

(1) in section 422(b)(10)(B) —

(A) in clause (iii)(I), by inserting ”safe and” after ”where”; and
(B) in clause (iv), by inserting ”safely” after ”remain”; and

42 USC 675.

(2) in section 475 —

(A) in paragraph (1)–

(i) in subparagraph (A), by inserting ”safety and” after ”discussion of the”; and
(ii) in subparagraph (B)–

(I) by inserting ”safe and” after ”child receives”; and
(II) by inserting ”safe” after

(B) in paragraph (5)–

(i) in subparagraph (A), in the matter preceding clause (i), by inserting ”a safe setting that is” after ”placement in”; and
(ii) in subparagraph (B)–

(I) by inserting ”the safety of the child,” after ”determine”; and
(II) by inserting ”and safely maintained in” after ”returned to”.

SEC. 103. STATES REQUIRED TO INITIATE OR JOIN PROCEEDINGS TO TERMINATE PARENTAL RIGHTS FOR CERTAIN CHILDREN IN FOSTER CARE.

(a) Requirement for Proceedings.–Section 475(5) of the Social Security Act (42 U.S.C. 675(5)) is amended–

(1) by striking ”and” at the end of subparagraph (C);
(2) by striking the period at the end of subparagraph (D) and inserting ”; and”; and
(3) by adding at the end the following:

”(E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the State shall file a petition to terminate the parental rights of the child’s parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless–

”(i) at the option of the State, the child is being cared for by a relative;
”(ii) a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or
”(iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child’s home, if reasonable efforts of the type described in section 471(a)(15)(B)(ii) are required to be made with respect to the child.”.

(b) Determination of Beginning of Foster Care.–Section 475(5) of the Social Security Act (42 U.S.C. 675(5)), as amended by subsection (a), is amended–

(1) by striking ”and” at the end of subparagraph (D);
(2) by striking the period at the end of subparagraph (E) and inserting ”; and”; and
(3) by adding at the end the following:

”(F) a child shall be considered to have entered foster care on the earlier of–

”(i) the date of the first judicial finding that the child has been subjected to child abuse or neglect; or
”(ii) the date that is 60 days after the date on which the child is removed from the home.”.

42 USC 675 note.

(c) Transition Rules.–

(1) New foster children.–In the case of a child who enters foster care (within the meaning of section 475(5)(F) of the Social Security Act) under the responsibility of a State after the date of the enactment of this Act–

(A) if the State comes into compliance with the amendments made by subsection (a) of this section before the child has been in such foster care for 15 of the most recent 22 months, the State shall comply with section 475(5)(E) of the Social Security Act with respect to the child when the child has been in such foster care for 15 of the most recent 22 months; and
(B) if the State comes into such compliance after the child has been in such foster care for 15 of the most recent 22 months, the State shall comply with such section 475(5)(E) with respect to the child not later than 3 months after the end of the first regular session of the State legislature that begins after such date of enactment.

(2) Current foster children.–In the case of children in foster care under the responsibility of the State on the date of the enactment of this Act, the State shall–

(A) not later than 6 months after the end of the first regular session of the State legislature that begins after such date of enactment, comply with section 475(5)(E) of the Social Security Act with respect to not less than \1/3\ of such children as the State shall select, giving priority to children for whom the permanency plan (within the meaning of part E of title IV of the Social Security Act) is adoption and children who have been in foster care for the greatest length of time;
(B) not later than 12 months after the end of such first regular session, comply with such section 475(5)(E) with respect to not less than \2/3\ of such children as the State shall select; and
(C) not later than 18 months after the end of such first regular session, comply with such section 475(5)(E) with respect to all of such children.

(3) Treatment of 2-year legislative sessions.–For purposes of this subsection, in the case of a State that has a 2-year legislative session, each year of the session is deemed to be a separate regular session of the State legislature.
(4) Requirements treated as state plan requirements.–For purposes of part E of title IV of the Social Security Act, the requirements of this subsection shall be treated as State plan requirements imposed by section 471(a) of such Act.

42 USC 675 note.

(d) Rule of Construction.–Nothing in this section or in part E of title IV of the Social Security Act (42 U.S.C. 670 et seq.), as amended by this Act, shall be construed as precluding State courts or State agencies from initiating the termination of parental rights for reasons other than, or for timelines earlier than, those specified in part E of title IV of such Act, when such actions are determined to be in the best interests of the child, including cases where the child has experienced multiple foster care placements of varying durations.

SEC. 104. NOTICE OF REVIEWS AND HEARINGS; OPPORTUNITY TO BE HEARD.

Section 475(5) of the Social Security Act (42 U.S.C. 675(5)), as amended by section 103, is amended–

(1) by striking ”and” at the end of subparagraph (E);
(2) by striking the period at the end of subparagraph (F) and inserting ”; and”; and
(3) by adding at the end the following:

”(G) the foster parents (if any) of a child and any preadoptive parent or relative providing care for the child are provided with notice of, and an opportunity to be heard in, any review or hearing to be held with respect to the child, except that this subparagraph shall not be construed to require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and opportunity to be heard.”.

SEC. 105. USE OF THE FEDERAL PARENT LOCATOR SERVICE FOR CHILD WELFARE SERVICES.

Section 453 of the Social Security Act (42 U.S.C. 653) is amended–

(1) in subsection (a)(2)–

(A) in the matter preceding subparagraph (A), by inserting ”or making or enforcing child custody or visitation orders,” after ”obligations,”; and (B) in subparagraph (A)–

(i) by striking ”or” at the end of clause (ii);
(ii) by striking the comma at the end of clause (iii) and inserting ”; or”; and
(iii) by inserting after clause (iii) the following:
”(iv) who has or may have parental rights with respect to a child,”; and

(2) in subsection (c)–

(A) by striking the period at the end of paragraph

(3) and inserting ”; and”; and

(B) by adding at the end the following:

”(4) a State agency that is administering a program operated under a State plan under subpart 1 of part B, or a State plan approved under subpart 2 of part B or under part E.”.

SEC. 106. CRIMINAL RECORDS CHECKS FOR PROSPECTIVE FOSTER AND ADOPTIVE PARENTS.

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)) is amended–

(1) by striking ”and” at the end of paragraph (18);
(2) by striking the period at the end of paragraph (19) and inserting ”; and”; and
(3) by adding at the end the following:
”(20)(A) unless an election provided for in subparagraph (B) is made with respect to the State, provides procedures for criminal records checks for any prospective foster or adoptive parent before the foster or adoptive parent may be finally approved for placement of a child on whose behalf foster care maintenance payments or adoption assistance payments are to be made under the State plan under this part, including procedures requiring that–

”(i) in any case in which a record check reveals a felony conviction for child abuse or neglect, for spousal abuse, for a crime against children (including child pornography), or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery, if a State finds that a court of competent jurisdiction has determined that the felony was committed at any time, such final approval shall not be granted; and
”(ii) in any case in which a record check reveals a felony conviction for physical assault, battery, or a drug-related offense, if a State finds that a court of competent jurisdiction has determined that the felony was committed within the past 5 years, such final approval shall not be granted; and

”(B) subparagraph (A) shall not apply to a State plan if the Governor of the State has notified the Secretary in writing that the State has elected to make subparagraph (A) inapplicable to the State, or if the State legislature, by law, has elected to make subparagraph (A) inapplicable to the State.”.

SEC. 107. DOCUMENTATION OF EFFORTS FOR ADOPTION OR LOCATION OF A PERMANENT HOME.

Section 475(1) of the Social Security Act (42 U.S.C. 675(1)) is amended–

(1) in the last sentence–

(A) by striking ”the case plan must also include”; and
(B) by redesignating such sentence as subparagraph (D) and indenting appropriately; and

(2) by adding at the end the following:
”(E) In the case of a child with respect to whom the permanency plan is adoption or placement in another permanent home, documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems.”.

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Representing parents in child protective services cases

REPRESENTING PARENTS IN CPS CASES

“Other than that, what do you have against them?”

Prepared By:

Marc D. Isenberg
Miriam J. Riskind
ISENBERG & RISKIND

21st Annual Juvenile Law Conference
February 18-20, 2008
Corpus Christi, Texas

ISENBERG & RISKIND
12 Greenway Plaza
Suite 1100
Houston, Texas 77046
(713) 940-0640 Telephone
(713) 880-0780 Fax
IsenbergM@aol.com

Biographical

Marc D. Isenberg

Educational Background:

Bachelor of Arts, University of Texas, 1971
Doctor of Jurisprudence, University of Houston Law Center, 1974
Board Certified, Personal Injury Trial Law, 1991
Board Certified, Juvenile Law 2003
Former Board of Directors, Houston Bar Association Juvenile Law Section

Major Accomplishments:

Eagle Scout
Hiked out of the bottom of the Grand Canyon during a snow storm
Took scuba lessons while my wife was in law school and sky dived after she graduated
Married for twenty-eight years
Only husband and wife team in Texas both certified in Juvenile Law

Miriam J. Riskind

Educational Background:

Bachelor of Arts, History, University of Texas, 1970
Master of Arts, Urban Studies, University of Houston, 1976
Doctor of Jurisprudence, Thurgood Marshall School of Law, 1990

Major Accomplishments

Board Certified in Juvenile Law, 2001
Former Chair, Houston Bar Association Juvenile Law Section
Currently Treasurer, Houston Bar Association Juvenile Law Section
Married to Marc Isenberg for more than 28 years



REPRESENTING PARENTS IN CPS CASES
“Other than that, what do you have against them?”

You may receive a fax or a telephone call from a court advising that you have been appointed in a case involving the Texas Department of Family and Protective Services (also known as “CPS”). In some instances, the only notice you will receive about your appointment will be a printout from the District Clerk. It may be obvious, but always carefully read through any printouts from any court or personnel. The printout will not tell you who you represent so an immediate trip to the courthouse to examine the file is in order. Be aware that in some instances the file may not contain anything indicating you have been appointed; the order appointing you may not yet be available. Clerks of the court can help you to determine your client.

1. Who do you represent?

You have been retained or appointed to represent a parent or parents in a case in which the Texas Department of Family and Protective Services (“CPS”) has filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Your client may be either the mother, father, the presumed father, the alleged father, or the unknown father.

If you have been retained or appointed to represent both parents, you must be exceedingly careful about conflicts which are likely to arise during your representation. You must advise both parents of possible conflicts and disclose all of this prior to beginning your representation. You must also advise them that in the event of a conflict, you may have to withdraw from representing either of them because you have received confidential information from both. There are countless examples of one parent’s actions or inactions which could greatly effect the status of the other parent. Because time lines are to critical in CPS cases, it is important to advise the Judge as soon as possible of a conflict and set a hearing for your release and substitution of another counsel to represent one or both of the parents. The better rule of representation is to represent only one of the parents.

2. Communication with your client

Does your client speak English and even if he or she does, can you effectively communicate with them? It is important to establish a relationship with your client as quickly as possible. Your client’s first reaction to the taking of their children by CPS is shock, disbelief, frustration and anger. Even as you identify yourself as their attorney, the client is likely to see you as part of “them” meaning CPS. It is critical that you establish trust with your client. This is easier said than done. How you approach them determines your working relationship throughout the case. As difficult as this can be while working with an English speaking client, the difficulty is increased when there is a language barrier between attorney and client. While the court must provide an interpreter during court proceedings, you will need to find some method to effectively communicate with your client outside of the courtroom. It may be that you have to move the court for an interpreter to be present to interpret when you meet with your client. This may be the only effective way to communicate with your client. This occurred in a case where both parents spoke only Bosnian.

Keeping track of your client during the pendency of the case can be a major problem. In addition to getting your client’s address, telephone number, social security number and driver license number, ask for the names, addresses and telephone numbers of your client’s relatives and friends so that when your client seems to have vanished, you have some way of attempting to locate him or her.

3. Know the investigative process and explain it to your client.

A. Mandatory Reporting of Child Abuse or Neglect

An individual having “cause to believe” that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person must immediately report the abuse or neglect. TFC §261.101(a). A professional must report if a child has been or may be abused or neglected, or if the child is a victim of the offense of Indecency with a Child under § 21.11 Texas Penal Code, and the professional has cause to believe that the child has been abused as defined by §261.001 or §261.401, the professional must make the report not later that the 48th hour after the hour the professional first suspects the abuse or neglect. TFC § 261.101(b). Both failure to report and making a false report carry criminal penalties. TPC §38.17.

B. CPS Investigation Objectives

The primary purpose of the investigation shall be the protection of the child, TFC §261.301(d). The objectives of the investigation are to (1) ensure the safety of the child; (2) determine whether abuse or neglect occurred, and the nature, extent and cause of the abuse or neglect; (3) determine whether the children are at risk or abuse or neglect in the future; (4) provide the family or children needed safety services; and (5) refer the family for services in the community that reduce the risk of abuse or enhance the well being of the family.

C. CPS Investigation Types and Procedures

The Texas Family Code requires a preliminary investigation of any anonymous report before CPS proceeds to a thorough investigation, TFC § 261.304(a). Unless CPS determines that there is some evidence to corroborate the report of abuse, CPS may not conduct a thorough investigation or take any action against the person accused of abuse. TFC § 261.304[c]. In a preliminary investigation of an anonymous report, the worker must stop the investigation as soon as he or she can reasonably determine that the child is safe and the report cannot be corroborated. A preliminary investigation under this statute may include an interview and examination of the child, visit to the child’s home, interviews with the parent, and an interview with any other persons the worker believes may have relevant information. TFC §261.304(b)

D. Investigative Tools and Statutory Requirements

Consistent with the child’s protection, the department’s investigation must determine: (1) the nature, extent, and cause of the abuse or neglect; (2) the identity of the person responsible for the abuse or neglect; (3) the names and conditions of other children in the home; (4) an evaluation of the parents or persons responsible for the care of the child; (5) the adequacy of the home environment; (6) the relationship of the child to persons responsible for the care, custody, or welfare of the child; and (7) all other pertinent data. TFC § 261.301(e).

The investigation may include a visit to the child’s home and an interview and an examination of the child, as well as an interview with the parents and other children in the home. An interview by the department of the alleged child victim of physical or sexual abuse must be audiotaped or videotaped. TFC § 261.302. If the department needs to transport the child for purposes of the interview or investigation, the department shall attempt to notify the parent or other person having custody of the child of the transport. TFC §261.302(b-1). A parent who is notified of, and attempts to interfere with the transportation can be charged with a Class B misdemeanor. TFC §261.302(f).

If a parent or another person who is responsible for the child’s care refuses to consent to the department’s request to interview a child or refuses to consent to a medical, psychological, or psychiatric evaluation of the child, the department may seek a court order to assist its investigation.

Orders in aid of an investigation under Sub-chapter D, Chapter 261 may include an order prohibiting interference with access to the child or the child’s records. TFC §262.303. The court may also prohibit removal of the child from the state during an investigation. TFC §261.306.

In addition to orders relating to the child and the child’s records, the court may order a parent or caretaker to submit to medical or mental examinations and provide access to related records. TFC §261.305. An indigent parent is entitled to appointed counsel in the hearing relating to examination or release of the parent’s medical records. TFC § 261.305[c]. Contumacious refusal to submit to orders in aid of investigation may be grounds for termination of parental rights in a subsequently filed SAPCR. TFC §161.001(1)(I).

4. Reason to believe after investigation

A governmental entity with an interest in the child may file a suit affecting the parent-child relationship requesting an order or take possession of a child without a court order. TFC § 262.001.

When a child is taken into possession without a court order, the person taking the child into possession, without unnecessary delay shall: (1) file a suit affecting the parent-child relationship; (2) request the court to appoint an attorney ad litem for the child; (3) request an initial hearing to be held by no later than the first working day after the child is taken into possession. TFC § 262.105. At the initial hearing the judge shall order the return of the child unless the court is satisfied that there is a continuing danger to the physical health or safety of the child if the child is returned to the parent or care giver who is presently entitled to possession of the child. TFC §262.107.

If the child is not returned to the parent or care giver at the initial hearing a full adversary hearing (Show Cause) shall be held within 14 days after the child was taken into possession by the governmental agency. TFC §262.201.

5. Preference of placement

If the child is not returned to the parent at the show cause hearing the court shall place the child with the noncustodial parent or with a relative unless they are deemed to be inappropriate. TFC § 262.201(e). It is therefore very important that you obtain a list of relatives or kinships so that CPS can conduct home studies for possible placement. In some cases, your client may not have good communication with — or actually be estranged from– their family. Your client may be ashamed, embarrassed, may feel family members do not understand, and may be unwilling to give CPS and you names. You must communicate very clearly to your client that it is almost always better for the children to be in the home of a relative or kinship than in foster care while the case is pending. Delay in providing this information may effectively keep children from family and in foster care. This is especially critical when the children are babies or infants; foster parents bond quickly with these children, and your client may be facing an intervention in the case by a foster parent in addition to battling with CPS for their children.

TFC §262.114 provides the procedure and time frames for conducting the evaluation of identified relatives and other designated individuals. Before the full adversary hearing, CPS must perform a background and criminal history check of the relatives or other designated individuals identified as potential relatives or designated care givers. CPS shall evaluate each person listed on the form to determine the relative or other designated individual who would be the most appropriate substitute care giver for the child and must complete a home study of the most appropriate substitute care giver, if any, before the full adversary hearing. TFC §262.114(a). CPS typically has not done this before the adversary hearing, and it can take more than 30+ days to get this done. Even if the home study is written, it may be sitting on a supervisor or program director’s desk , so you may need to set a hearing to get this done in compliance with the statute.

Also note that CPS rules state the preference for relative placements over other placements. See 40 Tex. Admin. Code §700.1320. The Texas Family code requires at each hearing in the CPS case that the Court place the child with a noncustodial parent, or if not appropriate, with a relative, unless that placement is not in the best interest of the child. TFC §§262.205(e); 263.306(a)(4)(5). If, at the time of the hearing, placement with a relative is not possible or is not in the child’s best interests, the Court must require, among other things, that the parent help locate other relatives who may be willing and able to care for the child. This means that CPS must continue to look for appropriate relatives during the case. As the attorney for a parent, you must ask your client to think of other relatives and contact information. You must be insistent about this because CPS often makes no further effort to locate relatives once the child is placed in an appropriate foster home.

6. Service Plan or “Jumping Through the Hoops

Within 45 days of the date the court renders a temporary order appointing the department as managing conservator CPS must file a family service plan. TFC §263.101. The plan must be in a language that the parent understands and must set out in detail the goals of the department and the steps necessary for the parent to demonstrate his or her ability to provide a safe and stable environment for the child. TFC §263.102. The plan has been developed by CPS staff based on the allegations of the removal of the children and the perceived needs of the parent. The plan will set out a series of tasks or courses for the parent to complete.

All of the plans call for your client to take a psychological evaluation, usually a drug and alcohol evaluation, and parenting. Some call for anger management, and a psychiatric evaluation.

The plan will typically state “… and follow all recommendations”. All of the plans call for stable employment, and a safe and adequate place to live. Your client must understand that this is a lengthy process, involving therapy, drug counseling, and any other services deemed necessary. Your client will be asked to sign a “release of information” form which will allow the caseworker to receive monthly reports from all the service providers as to the extent of your client’s participation. Your client needs to understand that they cannot be late for any appointments, miss any meetings, or miss any visitation with their children.

Be aware that CPS does not have to prepare a family service plan if the court finds that the parent(s) has engaged in an aggravated circumstance as set for in TFC §262.2015. The court must hold a status hearing within the first 60 days after CPS has been named as temporary managing conservator in order to review and approve the family service plan. TFC §263.201(a). The court must conduct a permanency hearing within 180 days of CPS being named as temporary managing conservator to monitor the goals of the agency and the status of the parents compliance with the family service plan. TFC §262.304.

It is critical to explain to your client that the family service plan is the road map that CPS has established which could result in family reunification. It is the parent’s duty to make the appointments for the services once CPS has made the referral. Problems typically arise for any number of reasons after a referral has been made. It is important that the lawyer explain to his client that the responsibility is on the client to advise the lawyer of the problem so that corrective steps can be taken before time runs out.

7. Time limits

The court must make a final ruling on the case within one year of the date of the original order appointing CPS as temporary managing conservator. TFC § 263.401. The court has the discretion to extend for six months its jurisdiction of the case. TFC § 263.401(b)

8. It looks like its going to be a trial

The termination of parental rights involves fundamental constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651 (1972). The natural rights that exist between parents and their children are of constitutional dimension, Hollick v. Smith, 685 S.W.2d, 20 (Tex. 1985).

BEWARE: INEFFECTIVENESS OF COUNSEL. The Texas Supreme Court has held that §107.013(a)(1) necessarily includes the right to effective assistance of counsel in termination of parental rights cases in In Re M.S.115 S.W.3d 534 (Tex. 2003), and that it is also extended to the area of appeals. In Re T.V. 8 S.W.3d 448 (Tex.App-Waco 1999).

Your client hates the case worker or vice versa. Your client has had a relapse or is in jail. The foster parent has bonded with the child and has filed an intervention for adoption. You get the idea, it looks like a trial – now what do you do?

Request mediation. Sometimes a neutral third party can bridge the gap between the intransigent parties. At one time, mediation was ordered at the beginning of the case. It was very helpful at that time because the parents were able to meet all the caseworkers, supervisors, attorneys and other parties in a neutral setting. As the attorney for the parents, this was very helpful in setting the tone of communications for the case. CPS has largely done away with mediation at the beginning of the case; now there are Permanency Planning Team (PPT) meetings at CPS offices, which are not as beneficial. Nevertheless, any attorney can request mediation at any time. It has proven to be a useful tool in getting the parents to understand the process and verbalize their concerns.

Permanency Planning Team (PPT) meetings are held at least twice during the case. CPS typically schedules these meetings at times which may be inconvenient to attorneys, such as 9:00 a.m. Your client must attend all of these meetings. You should be at all PPT meetings to act as an advocate for your client and keep lines of communication clear. If you find that you cannot attend due to any scheduling conflicts, participate by telephone conferencing. It is critical.

In some cases, if your client has family members who are supportive, you can request that a Family Conference be held instead of a PPT. Although a Family Conference is held at CPS offices, it is lengthier, includes family members, and in some ways, resembles a mediation. Family members are included in the planning; they contribute information and information about placement with relatives. It gives all the parties an opportunity to meet face to face in a less combative environment, and it can be a useful tool in facilitating communication among all the parties. Again, it is important that you make the time to be present at a Family Conference, or at least attend by telephone. It can set the tone for the entire case.

Discovery.

At the very least you need to file a request for disclosure, request for production, and interrogatories to CPS and to the attorney ad litem if you feel that the ad litem is adverse to your client. Once you get the case file, read it . . . Be alert if this discovery is not supplemented prior to trial. Object at trial!

You may also want to consider filing Special Exceptions to clarify which grounds CPS is alleging. The petitions filed by CPS have alleged everything in them including the kitchen sink. While many attorneys do not do this, it is an option.

Jury or court trial?

Explain to your client that the option is his or hers and explain the advantages and disadvantages in their particular case. CPS typically calls the parent as their first or second witness. Your client needs to understand and appreciate that. Depending upon the client, it is helpful to meet in the courtroom and have your client sit in the witness chair and react to questions from you. Advise them there will be questions from all of the attorneys on the case.

A parent whose rights are subject to termination in a suit affecting the parent-child relationship and against whom criminal charges are filed that directly relate to the grounds for which termination is sought may file a motion requesting a continuance of the final trial in the suit until the criminal charges are resolved. The court may grant the motion only if the court finds that a continuance is in the best interest of the child. TFC §161.2011(a).

The Texas Supreme Court has upheld the use of broad-form submission in jury questions relating to termination of parental rights cases. Texas Dept. Of Human Services v. E.B. 802 S.W.2d 647 (Tex. 1990). Be alert for hearsay statements and uncorroborated information at all court hearings. Carefully listen to testimony from Child Advocates, the caseworker, and any other witnesses and object where appropriate. Make timely and relevant objections and get a ruling on the record. If you do not preserve the error and get a ruling on the record, you have not protected the record for your client should they desire to appeal.

Bench warrant your client?

Many times if you are appointed, you do not know where your client is located. Even if your client is incarcerated, it may not be clear where they are within the prison system. In spite of “due diligence” CPS may not know where your client is. You will likely need to call the TDCJ information line, or get the information on your client on-line. You will need name, date of birth, driver’s license number, spin number if possible. Once you have located your client, if your client is incarcerated you should be in written communication with them regarding the status of the case. CPS is supposed to have prepared a family service plan even if he or she is in jail.

Your client needs to inform you whether he or she wants to be present during the trial. In your communication with your client consider the practical aspects of your client being present. Will it be easier for CPS to make its case if your client is present to respond to questions? Your client has an absolute right to be present if possible and participate even if by telephone.

Ongoing law enforcement investigations?

It is not unusual for the police to be investigating an offense for injury to a child or the like with your client a prime suspect while the CPS case is pending. Often your client feels that he should talk to the police because they continue to call or because another family member thinks it’s a good idea. The simple answer which is sometimes hard for the client to understand is “No, don’t talk to the police.”

It has been our experience that the police are particularly persistent and the client becomes uneasy and panics. In addition, CPS caseworkers and the police take the position “if they didn’t do anything, why shouldn’t they talk to the police?” If criminal charges are filed or pending, your client has an absolute right to remain silent.

If they can participate in parts of the Family Service Plan without making incriminating statements, they should. The other option is to simply not participate in the Family Service Plan until the criminal charges have been resolved. You may be appointed after the investigation by the police has begun and your client may have already spoken to the police. If your client has, you need to know what they told the police. A thorough interview with your client is a necessity. You need to get the time line and sequence of events from your client, statements, and any witnesses as soon as possible before memories fade. If your client has not been charged, he or she may be at any time. If at the time of your appointment your client has been incarcerated, you must interview your client in jail without delay. You need to obtain the name of your client’s criminal attorney and confer with him or her. If your client has made a statement, the criminal attorney should be able to provide you with a copy of the statement.

Advise the criminal attorney of the implication of any plea your client may take. Specifically, if your client enters a plea involving sexual abuse or injury to a child, that conviction will be offered in evidence by CPS to show your client met the grounds alleged in TFC §161.001(E), “engaged in conduct”, one of the most utilized grounds for termination.

Does ICWA apply?

Congress in 1978 created the Indian Child Welfare Act 25 USC § 1901 et. seq. The Act regulates placement proceedings involving Native American children. If one of the parents is a member of a Native American Tribe or is eligible to be enrolled in the tribe, the tribe must be notified and given an opportunity to intervene in the case before it can go to trial. This is an issue that many attorneys fail to address until the eleventh hour. ICWA §1912(f) provides that no termination of parental rights may be ordered in the absence of such determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. In Re W.D.H. 43 S.W.3d 30 (Tex.App-Houston {14th Dist}. Clearly ICWA has proven to be a valuable tool for attorneys representing parents.

9. Your client wants to appeal.

The Texas Legislature decided that appeals of cases involving termination of parental rights brought by CPS are to be expedited. The attorney representing a parent whose rights have been terminated must read and understand TFC §262.405 even if that attorney does not plan to handle the appeal.

You must make your client aware of the possibility that even if they were declared indigent for purposes of the CPS case, that not be the case for an appeal. If they are declared not indigent for the appeal, your client will be responsible for the cost of the court record, the reporter’s record and the attorney fees. Your client needs to be advised that if the case was a court trial, the same judge who terminated their parental rights will, in all likelihood, then make the determination of whether or their appeal is frivolous TFC §263.405(c)(3). If the judge decides that the appeal is frivolous, then the only review by the appellate court is on the issue of whether the case is frivolous, and not on the merits of the case. Finally, you must advise your client that the appellate process may take a year or more before there is a decision by the appellate court.

Within 15 days of the entry of the order terminating the parental rights between your client and his or her child, you must file a statement of appellate points. The statement of appellate points is filed before a motion for new trial, notice of appeal and request for findings of fact and conclusions of law. You can combine a Motion For New Trial and Statement of Appellate Points. The statement of appellate points should be more than “the judicial decision is contrary to the evidence” or that” the evidence is factually or legally insufficient to preserve error” TFC §262.405(I). The only person in a position to prepare the statement of appellate points is the trial attorney. Failure on the part of the trial attorney to do this has the effect of crippling the attorney handling the appeal. By far the best method of assisting your client if they want to appeal is to immediately notify the court that your client wishes to appeal, you do not wish to handle the appeal, and that you wish for an attorney to be appointed for the appeal. At the same time, prepare the Motion For New Trial and Statement of Appellate Points, Request For Finding of Facts and Conclusions of Law (if it was a court trial) must be filed (within 20 days of the final order), Motion to Substitute Counsel, and Affidavits of Indigence (within 20 days of the final order). Serve all the proper parties and set the Motions in the trial court for hearings quickly. Be aware that the Notice of Appeal must also be filed with the trial court (the Appellate Division of the District Clerk’s office) and the Appellate Court. In Houston, there are two Appellate Courts: the 14th Court of Appeals and the 1st Court of Appeals. The practice is to file a Notice in each court. Although your name may be on the Notice of Appeal, you can file a representation letter once the appellate attorney has been appointed, and the appellate court will remove your name from the list.

10. Conclusion

There are few cases that an attorney may handle in his or her career that require more effort and emotional investment than in representing a parent in a termination of parental rights case brought by CPS. It requires an extraordinary amount of work to keep on top of your client, the CPS case worker, the service provider, and countless others who are involved in a constitutionally protected right. Your client typically will feel outnumbered and overwhelmed. You may find that your role as counselor becomes critical. There are typically few thanks at the end of the case. Perhaps the best thanks is your knowledge that you were prepared and you did the best you could do.

While your job is to legally represent your client, part of your job is to advocate for your client. Promote clear communication between the CPS workers and your client. Be alert to personality conflicts and work to minimize that as much as possible. The emotions are high and the case is difficult enough without additional problems.

Represent your client to the best of your ability and treat your client with the respect you would expect.

The right to a fair trial is fundamental to our society. Your job in providing meaningful representation to your client in such a sensitive area is a cornerstone of those rights.

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Posted by admin - December 1, 2010 at 2:42 am

Categories: Child Abuse Laws   Tags: , , , ,