Best Interests of the Children or CYA?

February 1, 2012 by 1 Comment

Yesterday in Court:

Me:  You stated on direct that you believe that it is in the best interests of the children to complete their therapy before being returned to the mother, is that correct?

Caseworker:  Yes.

Me:  CPS first became involved in this case because of an allegation of sexual abuse against the father of one of the children, isn’t that also correct?

Caseworker:  Yes.

Me:  And the Agency conducted an extended forensic interview on that child, correct?

Caseworker:  Yes.

Me:  And isn’t it correct that at the conclusion of the extended forensic interview it was found that there was no outcry, i.e., no actual complaint by the child that there was any abuse?

Caseworker:  Yes.

Me:  Isn’t it also correct that the mother has successfully been discharged from therapy?

Caseworker:  Yes.

Me:  And her therapist recommended that she be reuinited with her children?

Caseworker:  Yes.

Me:  So, despite the fact that the allegation of sexual abuse has not been validated, and the mother’s therapist has recommended reuification, the Agency still feels that it is in the best interst of the children for them to complete their therapy before efforts to reuite the family begin?

Caseworker:  Yes.

Me:  What are you or the Agency hoping for the children to get out of this therapy?

Caseworker:  For them to deal with their seperation issues.  Separation from their mother.

Me:  But wouldn’t you agree that the surest and best way to deal with their separation from their mother is to reunite them with her?

Caseworker:  Yes

CPS… a cottage industry…separate children from their parents so that the children will need therapy to deal with separation isssues.  Certainly in the “best interests” of CPS!

 

 

Filed under Child Protective Services

Does the Judge Who is Presiding Over Your Case Know the Law?

January 29, 2012 by Leave a Comment

Two years ago I happened to be in a Harris County judge’s chambers while he was grousing about the fact that some people believed that he did not care about keeping families together; many attorneys have joked that he “never met a termination he didn’t like”.   Now, although I may accept that this judge truly believed he was not setting out intentionally to break up families, the predictable effect of his decisions was just that.  The question then is begged, have his decisions been based on a skewed or unworkable definition of the “best interests of the child”, or perhaps the “problem” lies  within the judge’s job description itself, a description which requires a judge to think and act simlutaneously as a jurist and social worker?!  The skills necessary to fulfill these roles are vastly different, arguably in opposition to each other, on the one hand calling for the dispassionate perspective of a legal scholar – Lady Liberty is blindfolded, after all – while on the other hand requiring the ability to “feel” for the litigants, and to put oneself in their place, which the court generally is admonished not to do.  To be able to acknowledge, first of all, and then to balance such conflicting perspectives is a challenge that very few judges can meet successfully.   From experience, it appears that judges who unduly embrace their role as social worker often fail to remember that their primary duty is to “interpret and apply the laws that govern us”; (Texas Code of Judicial Conduct, Preamble).  Consequently, it should not come as a surprise when these same judges fail to keep abreast of relevant and controlling legal precedent - in violation of  Canon 3(B)(2) of the Code of Judicial Conduct;  ”A judge should be faithful to the law and shall maintain professional competence in it”.  However, there are times when a judge’s ignorance should not be tolerated; when it truly should shock the conscience of the legal bar.

I bring this issue up because, last week, I was astonished when a Harris County Associate Judge ruled in my matter that the 4th amendment does not apply in CPS cases.  It does, of course, as one of the prosecutors sitting and watching the proceedings confirmed to me after he just about fell off his chair.  Wow!  Had the judge found that no violation occurred, I wouldn’t be writing this today.  But her ruling is such a stunning misstatement of the law that it makes one wonder ”what else does this judge not know?”  To put it in perspective, her ignorance is akin to a criminal judge not knowing about Miranda.  Yes, it’s that shocking.  As citizens of Harris County, we should be concerned, and we should demand that the people chosen to preside over the fates of families should at the very least KNOW THE LAW!

 

Filed under Child Protective Services, Legal Malpractice

THE IMPORTANCE OF DOCUMENTATION

July 12, 2011 by Leave a Comment

Let me begin by expressing my opinion that it is the equivalent of committing administrative suicide for a parent to appear in court without a lawyer when fighting CPS. Having said that, if you are unfortunate enough to find yourself in such a situation, it is important to take whatever steps you can to give yourself a fighting chance.

First, don’t take the Judge’s pleasant demeanor, or the sympathetic looks of the CPS Caseworker or the County Attorney as indications that things are going your way. To use a poker metaphor, when you appear without an attorney you are “the fish at the table”; “dead money”. When they smile and ask to you sign papers which will “make things go more smoothly”, they are not worried about how smoothly things will go for you.

In this vein, it is equally important that you should not be hesitant or shy about reciting and documenting your exchanges with CPS regarding your service plan, and you should be especially “pushy” (“politely aggressive”) about informing and documenting your communications with CPS regarding potential placements with family or “fictive kin”, (close family friends).

Having frequently been retained on CPS cases at the 11th hour, invariably one of the first questions posed to me by a parent is “why is my child in foster care when there are so many family members and friends who are capable, and willing to take and care for the child?” When I confront the caseworkers with this question, they typically respond that “no one ever told them”; this despite the fact that parents and grandparents are able to provide detailed descriptions – to me – of when, where and to whom they gave this information. This problem becomes exacerbated when cases get passed from caseworker to caseworker, and a “lack of memory” truly does become institutionalized.

The Sloth Rule: Caseworkers are overworked, and it’s much easier for them to maintain the status quo then to actually have to put some effort into a case, so your best bet is to make them work.

So, if you are fighting CPS, remember the basic rule:

DOCUMENT, DOCUMENT, DOCUMENT

Never rely solely on oral communications, since undocumented communications are too easy to “forget”. With respect to any potential placements you want to propose, request to fill out CPS’ official forms, and if no forms are available, simply write it down on your own and make sure it is presented to CPS. You should also document your efforts via e-mail and/or by getting your documents filed with the court. Remember: if you don’t “document” your exchanges, it can be argued that there is “no proof”, and, if there is no proof, CPS can easily say that it didn’t happen.

Filed under Child Protective Services

Looking for Legal Answers? It’s NOT Always Wise to Just “Google It”

June 9, 2011 by Leave a Comment

Information is not knowledge. 

                                                                                                                                       Albert Einstein

When I have a medical problem, I call my doctor; for a leaky pipe, a plumber.  Although I am likely to research a problem before I make a call, I know my limitations and I’m not about to self-medicate or try to fix a pipe.  That is why I am always baffled and disturbed when I hear about someone who has made their situation worse, and really gotten themselves into a legal bind, by attempting to solve their own legal problems by ”researching” (what they perceive to be) their issue on the Internet.   So, after some recent encounters, I feel compelled to state what should be obvious:

WEBSITES (including my own) STATE VERY GENERAL PRINCIPLES

They may provide some useful information, but they are primarily designed to showcase a lawyer’s field(s) of expertise; they are not designed to solve individual legal problems.   

If you read something on a website which states that you should NEVER do something, or that you should ALWAYS do something, you should understand that these are general rules, and that there are exceptions to every rule.  There may be situations where the general rule will not apply to you, and the general advice will not be helpful to you in your situation. 

Although I understand that no one likes to pay for a lawyer, sometimes not doing so can be even more costly.  I wouldn’t perform surgery on myself after reading a book, and you shouldn’t hesitate to seek legal advice when you need it.  Know your limitations and protect yourself.     

Filed under Child Protective Services, Criminal Law, Employment Law, Uncategorized

Drug Testing: Court Ordered & CPS

May 4, 2011 by Leave a Comment

Over the years, a number of people have asked me questions about drug testing. Here I will attempt to address some of the recurring questions I have been asked on this subject:

1) Do I have to submit to urinalysis (“UA”) when the Court, CPS caseworker, or my probation officer, tells me to?

The short answer is: “yes”. Most drugs will leave your urine within 72 hours so when CPS or probation requests a urine test, they will demand that you take the test within a specified time period. Failure to take the test within that time period will be regarded as a “positive” test, (i.e., dirty urine) .

2) How long will marijuana leave detectable traces in my urine?

Depending on your metabolism, marijuana stays in your system for approximately 30 days.

3) What if I drink a lot of water to flush out my system?

Extreme fluid intake will change your electrolytes, which will be detected by the urine test. CPS or probation will consider a “diluted negative” test as a “positive”.

4) Do I have to go to the testing facility that CPS or probation requests?

Yes. However, labs are not infallible, and if you have real or serious doubts about the veracity of the test results at the lab you were sent to, you may get your own tests performed at a reputable facility for a comparison. If you decide to do this, make sure that you ask your lab for a “business records affidavit” so that your lawyer can use the results in court. Also, it is important that you take your own test at or about the same time as you take the test demanded by CPS or probation, because, if you don’t, they will argue that your test isn’t a real comparison, and that it is not useful or vaild to dispute the results from their lab’s tests.

5) If I dye or straighten my hair, will that effect the results of a hair follicle exam?

No.

6) If I shave my head, or if I have a weave, will that prevent the lab from being able to test me?

No, they will get hair from another place on your body.

7) What if I shave my body?

They will get hair from whereever they can. However, if there truly is no hair available, they may consider that a positive.

8) How far back in time will a hair follicle test measure?

Generally, CPS asks for a 3 month look back. However, in some cirumstances a “zero tolarence” test will be ordered, which could go back 6 months or more.

9) What if I can’t pee with someone watching me?

You must try. Pretend that you are alone. A failure to provide a sample may be considered a positive.

10) When it comes to drug testing, is there a difference between head and body hair?

Yes. It’s easier to gauge a 3 month lookback period with head hair. Body hair grows slower, which increases the lookback period.

Filed under Child Protective Services, Criminal Law

Going to Court with CPS? Be Prepared!

April 28, 2011 by Leave a Comment

Fighting CPS is unnerving under the best of circumstances, and the stresses of a courtroom battle only compounds the situation. That being said, there are some things that you can do to minimize the stress.

  1. Prepare your lawyer – help your lawyer to help you!
    Make sure that your attorney is prepared by letting her/him know exactly what has been going on in your life as well as your children’s lives. This requires open lines of communication with your attorney, and, if you have any interaction with CPS before retaining an attorney, you should document all of your actions both with respect to your services and your communications with the caseworker, and then make sure that your attorney has all of these details at least a few days before she/he walks into court. A failure to communicate fully with your lawyer not only will mean that your lawyer will know less than the CPS caseworker(s), but it may result in your lawyer being ill-equipped to challenge any lies or half-truths that the caseworker(s) might tell in court.
  2. Prepare yourself – this won’t be fun!
    Be mentally and emotionally prepared to hear unpleasant things said about you in court. It is extremely rare for a caseworker to give glowing and positive reviews about any parent’s progress. That being said, if you are mentally and emotionally prepared, you will be able to weather the storm, and to keep from losing your temper in court, which would only serve to negatively compound an already bad situation. Requiring the Judge or the bailiff to tell you to “calm down or leave the courtroom” will not help your cause. This brings us back to point (1); Help to Prepare Your Lawyer – if your lawyer is prepared, she/he will be better able to counter the kinds of lies or half-truths that most certainly will drive you crazy when you hear them in court.
  3. Bring family members with you to court – family support is what it’s all about!
    Unfortunately, because CPS has complained about you, the court may be predisposed to believe that you are not a caring parent, or that your family life is not nurturing or supportive. Judges can be persuaded otherwise when they observe family interest and support. Having family support in court sends a strong positive message, and it makes it more difficult for CPS to argue that the children need to go into foster care.
  4. Dress “appropriately” – you don’t want to be “mis-judged”!
    In line with point (3), above, everything you do in court sends a message and, like it or not, you are being judged personally. You’re in court to fight because you want to take responsibility for your children, so why not dress responsibly? So, if you are headed to court, do a serious assessment of your appearance. Dress as conservatively as you can, and make sure that your hair and nails are “court-appropriate”. If you have any doubts, don’t wear it.
  5. Bend over backwards to be nice – you’re playing in their ballpark!
    Anyone who loves their children would be offended by an accusation that they have not been a good or responsible parent. Unfortunately, while the Judge, or the CPS caseworker, can get away with being rude or snarky, you can’t. We know you are there to fight, but realize that you have to do it nicely. Remember, CPS has an incredible amount of power and a bad evaluation from a caseworker can be damning.

Filed under Child Protective Services

VALUING A LAWYER’S SERVICES, AND GETTING WHAT YOU PAY FOR

March 3, 2011 by Leave a Comment

Abe Lincoln said it; “A lawyer’s time and advice are his stock in trade”.

Lawyers do not sell a product in the common sense of the word. But they do produce: guidance and strategies and a perspective that enables a client to more fully and carefully appreciate the consequences of his or her life’s choices. In short, (to understand Mr. Lincoln’s point), lawyers use their time to gain an understanding of the client’s matter, and they then give the client advice. Of course, consistent with the client’s goals and objectives, a lawyer also can take practical steps to further the client’s interests; drafting contracts and other documents; and even litigating in court.

However, what a lawyer cannot do is to guaranty a result. Indeed, in most jurisdictions, a lawyer is ethically prohibited from doing so.

How then can the client know whether or not the client is getting, or has gotten, what the client “paid for”, (or what the client was entitled to, in any event, since the condition of payment should not affect a lawyer’s performance once representation is undertaken)?

There is an answer, although it may seem elusive to the layperson. A lawyer is protected in the excercise of judgment – making a “judgment call” under most circumstances will not expose the lawyer to professional rebuke or to civil liability for negligent representation. The “trick” is how to define “judgment”. Theoretically, or conceptually, the definition is “normative”, and it assumes that there is a prevailing “standard of practice” which should inform the judgment of a competent lawyer. In that regard, in one form or another, the norm is stated to be “that standard of care or practice such as would have been exercised by a reasonably prudent and competent attorney under the circumstances”.

What does that mean? Well, in reality, the standard of practice for lawyers tends to be defined in the negative, when we argue that a particular act or omission by an attorney was NOT “…such as would have been exercised by a reasonably prudent and competent attorney under the circumstances”.

At the same time, rather than emanating from a vaulted set of “weights and measures”, the standard is a relative one, and it is defined by reference and/or comparison to conduct at the extreme ends of the curve; e.g., “clearly it is negligent to fail to file a civil suit within the statute of limitation”; or “clearly it is not negligent to fail to investigate the potential defense of a criminal defendant who is actually guilty of the crime charged”; (as to the latter, before my brethren from the criminal defense bar jump all over me for apparently condoning shoddy practice, I assure them I am not…in this discussion I simply am pointing out, for good or bad, that it is nearly impossible to successfully sue a criminal defense attorney for malpractice).

Identifying the extremes is ‘relatively’ easy. Somewhere in between (a rock and a hard place?) is where most clients find themselves, and that is where attorney malpractice litigation is focused. Of course we are referring to dissatisfied clients; clients who did not get “what they paid for”. Maybe most clients are dissatisfied, since there is usually no perfect result in the law, and maybe all lawyers have erred in some way, since we are, after all, human, but there are real cases where the lawyer did not do what he or she was supposed to do, what “a reasonably prudent and competent attorney under the circumstances” would have done, and where that failure – let’s call it negligence – cost the client; (the concept of “proximate cause”, whether the lawyer’s negligence actually was the cause-in-fact of the client’s harm, is discussed elsewhere).

Only an attorney who is experienced in litigating attorney malpractice actions will be able to render a meaningful opinion about whether the lawyer in YOUR case was negligent, and whether that negligence was a legal cause of harm to you. You may not get the answer you hoped for. You may be advised that you do not have a very strong case against your lawyer. But, if you don’t ask, you will be carrying around that question with you, and that can be a depressing burden. Since you have a limited time under the law to sue an attorney for malpractice, think about whether you want the question answered in your case.

Filed under Legal Malpractice