CPS and Court Orders Explained
It’s important to start with an understanding of what each of these authorities is, in order to provide some context in understanding how they relate to one another. CPS is short for Child Protective Services, a child-welfare department that receives, processes and investigates allegations of abuse or neglect of children. Depending on the severity of the situation, CPS may or may not remove children from the home and begin working with the family on solutions to the problems at hand. One of the questions I get asked very often is "I have an open case with CPS; do I still need an attorney?" My answer to that is, and always will be, YES! This thought process is extremely dangerous because ultimately, if your case is not closed, it is still open, and there will be a final determination made about whether the child should remain in the home. It oversimplifies the very convoluted process the government has set forth without an ally to help you navigate the minefield. Not to mention, the stakes are not lower when CPS is involved—if anything, the stakes are even higher, and they are able to trample over your civil rights and ignore the law because they have a badge. They often look over their shoulders to higher ups at CPS, rather than the judges they are supposed to defer to (but don’t). Most importantly, if you are the living inside this parent nightmare, CPS already thinks you are, and furthermore, they act as if you are, guilty until proven innocent. Fight back! Get a lawyer to help you through this process and ensure that they respect your rights and adequately investigate the situation before making any decisions. You are one of the most important things in your child’s life—they don’t care what letter your name begins with, they just want you there—and you shouldn’t have to pay out the nose just for someone to look into the situation . While court orders come in many forms, they are typically an agreement between parties overseen by a judge or a final determination made by a judge after due process is provided, in which the judge dictates who gets what, when and where; or who does what, when and where. The point is, the judge decides—it’s not up to CPS, and it’s not up to the parent. The judge’s decision is the law. Even if the parties decide to come to an agreement, the judge is a part of that process and essentially makes the agreement into a court order—again, dictating who gets what, when and where. So long as it is not against the law, the parties are allowed to do whatever it is they can with their property so long as it is legal in any given state; for example, some agreements dictate that parents share custody of their children, who get to see the kids when, and (if) there are issues, the judge decides. It’s a lot easier to create an agreement on paper than once you inevitably run into problems with one another, so not a bad place to start with CPS. But the final outcome is what matters. CPS is NOT a court of law, nor is CPS a judge, nor does CPS represent you in front of the judge, you represent you in the courtroom. Don’t let them trick you into believing that all they have to say goes, because they have no authority over a court order—they don’t interpret it, either. That’s not their job, and it’s not their purpose. They didn’t make the deal, and they aren’t the buyer or the seller, so they don’t get to dictate the terms later on down the road if they happen to disagree with one another. They have to live with it, just like the parties do. If there’s a change in circumstance, and the order is no longer viable, that’s the parties’ prerogative—they can go to court and have the judge address the issue, but CPS cannot circumvent the authority of the court, and they cannot choose to ignore a court order, nor can the parties.
Situations CPS can Step In
In some instances, CPS may seek to override a court order. For example, sometimes a judge will order that a child should be released from CPS custody. This order does not mean that CPS must release the child from state care. An appropriate CPS attorney can request this order from the judge and should be able to win.
The Texas Family Code gives CPS broad powers to remove a child from their home when there is an immediate danger to the child such as sexual abuse, physical abuse and child exploitation. In these instances, courts tend to agree with CPS. But that does not mean that a particular action taken by CPS is appropriate as has been seen in other situations.
The Texas Family Code allows CPS to take action without first obtaining court approval when they find that there is an emergency situation. However, while they have this ability, it does not always mean that they should override a court order. But it is important to know that they can when necessary.
There are certain criteria CPS will use before intervening in any situation. They need to find that one or more of the following situations exist:
The child has been abandoned;
The child has been abused or may be immediately abused;
The child has been sexually abused or may be sexually abused; or
There is a substantial risk that the child may be physically or mentally injured or has been sexually abused.
Emergency situations where CPS may intervene include an emergency such as when a child is sexually abused, is at risk for injury in the home where they currently live, or have been abandoned by their parents. If there is a large risk that a child will be hurt if they are not removed, CPS will override court orders when necessary.
When Does CPS Authority Have Legal Boundaries?
While Child Protective Services (CPS) possesses tremendous power and authority, they are not without checks and balances. As the Supreme Court of Florida has acknowledged in Department of Children and Families v. Nason, 180 So. 3d 1175 , 1179 (Fla. 2015), "[t]he child welfare system and the courts that oversee it have a shared responsibility ‘for balancing the sometimes competing interests of protecting children from abuse and neglect, safeguarding parental rights, and protecting against improper government interference in the family.’ " As a result, CPS cannot freely disregard the court’s order or make changes to a case plan without written approval from the judge, the local State Attorney’s office, and parent counsel. The agency must follow the law set forth in §125, Fla.Stat. A parent can appeal any unlawful change in the case plan to the chief judge, which provides an important check on CPS’s authority.
CPS vs Court Orders: Sample Scenarios
The boundaries of the authority of the Child Protective Services (CPS) team can often be overstepped, resulting in conflict with standing court orders. A few case studies exemplifying this issue will further clarify the situation. A couple I represented received a court order against CPS stating that CPS no longer had the right to remove their child from their home. The order was dated February 7, 2014, and it stated the following: "IT IS ORDERED that DFPS is no longer granted any authority to remove the children from their parents’ home solely because [the parents] have for a time refused to allow [the child] to spend unsupervised overnight time with the paternal grandfather or at the paternal grandfather’s residence." The language here shows a clear judicial finding of fact and finality on this issue. The parents lived in central Texas, where CPS is also located. On July 18, 2014, the grandparents filed a motion to modify and a petition for temporary conservatorship, or to have the state take care of the child in between court orders while there is an ongoing dispute about where the child should live. These petitions were filed with a "$10 filing fee" and a "boilerplate affidavit." However, on July 14, 2014, two days before the filing of the grandparents’ motion, CPS had removed the child without a court order or judicial finding of any fact that would warrant removal. This is a violation of the court order that they had already received. The parents were being denied access to their child due to this blatant ignorance of the court order. The child had been placed in a foster home, and the only attempt by CPS to appease these very reasonable parents, who simply wanted to maintain a relationship with their child, were to switch out the CPS case workers and to place the child temporarily with a distant relative who resided out of state, which she later confirmed was not going to be possible. Otherwise, the foster case worker, who was "brand new" to foster care, appeared to have no interest in reuniting this child with her natural parents . Due to the vacancy in the foster home that was providing care for the child, CPS jumped at the chance to simply stop treating this child like a burden on their budget. This is contrary to The Texas Family Code. In a situation similar to that above, I was approached by a concerned parent about two weeks ago. This concerned parent has filed for Temporary Restraining Orders (TROs) against CPS when the caseworker showed up with little to no cause to take the child over the holidays. This case involved the grandparents, the parents, a CPS caseworker, a guardian ad litem and a child. The TRO against CPS remains in place here, but the parents have been denied access to their child for an entire week at this date. The only individual with the legal right to see the child may only do so in the presence of CPS representatives, even though CPS has been ordered to ignore their own caseworker and allow the child to stay with his parents. That’s the current situation. These examples of jurisdictional meddling by the CPS office are clearly violations of the Texas Family Code. This type of trespass on the court system contributes to a lack of due process and sacred liberty simply because CPS workers are acting according to their own interests rather than the interests of the child. As far as the State of Texas is concerned, they have every right to use any means necessary to block a child from seeing his or her natural parents. For the parents, however, there is currently no legal recourse to get a solution to this problem. The Texas Family Code already provides them with the option to appeal the final ruling by the district court. However, in these cases, there were no final rulings made by the court. What does that say about the balance of power and the appropriate role of CPS when it comes to the legal rights of parents and children? CPS has the power to use force and the jurisdiction of the state to remove children from natural parents at will, even if there is no legal reason for doing so. The Texas Legislature assumes that the people of the State of Texas care about the safety and well-being of children to the degree that they should be willing to fund these department’s criminal activities.
How to Fight CPS Interventions
A parent or guardian may file a complaint with the Department of Child Safety against the family case manager. The department must investigate the complaint and provide a written response. If they determine the complaint is unfounded, the complainant does not have the right to a fair hearing.
The administrative procedures and appeals process for DCS are outlined in Arizona Revised Statutes § 8-814 et seq. A person may appeal an agency action or decision if an action was authorized by law, or if a law requires the agency to act in a certain manner. For example, if a child was removed from the home in violation of Arizona Revised Statutes § 8-842, a parent has the right to appeal that decision.
The decision to remove a child from the home creates a right for the parents and any other adult residing in the household to an administrative hearing on the issue. On the record at the administrative hearing, the family case manager must show there was reasonable cause to believe that the child was in immediate danger, and that removing the child was necessary to avoid this danger. If the family case manager cannot show reasonable cause, the family must be reunified within 5 days.
The person who files a complaint may appeal an agency action or decision on any of the following grounds:
Additional information on fair hearing procedures is available on the Arizona State website.
Consulting an Attorney in Court Order and CPS Issues
If you have been removed from your child and the CPS is still involved, or if you are struggling with services and court orders, I would advise you strongly to contact a private attorney or an attorney at legal aid for legal assistance and advice. There are many different individual agencies that can help with private attorney fees. Legal aid accepts committed individuals based on their own internal criteria. Consult with an attorney to know your rights. I am not saying you should not go to court but if you are still confused on what you’re supposed to be doing , it may be time to seek a private attorney or legal aid attorney for help. Some private attorneys will work with you at no cost if you make payments over a specified amount of time and can provide your court paperwork.
