Can CPS Terminate Parental Rights Based on Old Events?

As always, I can give advice only about cases pending under Texas law, since I am licensed within only that state. CPS in other states may be similar or dissimilar to Texas CPS

The Department of Family and Protective Services (of which CPS is a part) states in their publications that:

“(w)e promote safe and healthy families and protect children and vulnerable adults from abuse, neglect, and exploitation.

Values

Accountable: We act with a sense of urgency to deliver results in an accountable, ethical, and transparent manner.

Respectful: We recognize the value of each person and act timely, value privacy, and treat all with respect.”[1]

In light of those express commitments to act “urgently,” and “timely,” we might expect that if CPS had concern(S) about the safety and welfare of children, then they would focus on recent events involving those children. In our experience, however, that is not always the case.[2]

Our courts have held that allegations of abuse or neglect against a parent must not be too remote in time, if termination of parental rights is sought because of that behavior. And, if you think about it, that makes sense: something that a parent did or did not do years ago does not bear strongly on a child’s current living circumstances. Put another way, “termination proceedings should be based on facts that are fresh enough to apply to the children at the time of the trial.”[3]

Texas CPS has to show not only some act of abuse or neglect by the parent, but also, that the termination is in the current “best interest” of the child. So, something that happened long ago does not provide solid evidence of what is currently in a child’s best interest. Things change over time; kids mature, and their needs change.

So, what are some examples of time periods that our courts have found to be too long past (remote) to support a current termination of parental rights? Well, in our research we have learned that our (Texas) courts have, so far, not defined that time period precisely. They have, however, determined in one case that that five (5) years between the act of abuse or neglect, and the termination trial, was too long. Another Texas court has held that three (3) years was too remote to support a termination finding.

Consistent with those cases, the Texas legislature has enacted legislation in Texas which requires generally (as with most things dictated by a law, there are exceptions to the general rule) that termination cases end within one year of when they are begun. But, of course, even if they meet that standard, the acts of abuse or neglect may still be found by a court to be too remote if the case was not started until a long time after the incident(s) occurred.

So, CPS should investigate a case soon enough after alleged abuse or neglect occurs; and, begin and complete their legal case timely. The burden of accomplishing those things fall on CPS, and not on the parents.

As with most legal matters, it is important to consult with an attorney for legal advice as soon as possible. Once a case has been filed, you may be entitled to have legal counsel appointed for you.

As always, we wish you the best, and hope that all kids are treated with love and respect.

Until next time, please take care of yourself and your loved ones!

 

Best regards,

 

David

 

[1][1] Texas Child Protective Services Handbook,” Section 1110

 

[2] Granted that some things, such as our government’s response to a pandemic, is out of the control of CPS

[3] This language is from a brief that we prepared and filed

 

 

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The Importance of Non-Expert Witnesses in Child Custody Cases

This article, as its name implies, discusses the impact that non-expert witnesses, such as a child’s teacher, doctor, daycare provider, neighbor, or the parents of a child’s friends, can have when a court is considering child custody. If you want to see the specific child custody factors that a Texas Family Court will consider, then I refer you to my earlier post, “How Child Custody Cases are Won (part 1).” I also have written about how to show evidence of those child custody factors in Part 2  and Part 3 of that series.

The Judge of your particular court expects that if your child custody case has made it all the way to a contested trial, then the mother and father of the children in the case disagree—likely strongly—about what custody arrangement is in the child or children’s best interest. And so, your Judge will not be at all surprised when the Mother testifies that she is the better parent, and the Father claims that he is, actually, the better one. We will need to give the court more help in making its custody decision. Often, that “help” comes from the testimony of other folks who have been involved with the children and family.

If the children are school-aged, then their current and former teachers probably have a sense of which parent has been involved in discussing those children’s academic performances, addressing educational issues, and being available during unscheduled events that require immediate attention, such as a school’s early dismissal due to bad weather, or a child’s illness. And, if the parents have been separated during the school year, then those teachers can usually offer opinions on how rested, clean, and prepared those kids are for school when they stay with Mom, and when they stay with Dad. Child care workers can offer similar information about younger children, who are not yet attending school.

If your child participates in one or more organized activities, such as soccer, band, or drama, then the parents of the other children involved in that activity can testify about when, and to what extent, each parent supports the child in that activity; such as by driving the child to practice or performances, attending those events to watch their child, and supporting the group as a whole through volunteer activities and fund-raising, for example. Since the child will probably want to continue in the activity after the custody case has ended, those people can give valuable insight to the court about each parent’s support of their child’s interests.

The neighbors of children usually know if there are “issues” at a parent’s home, such as loud fights, wild parties, or police activity at that home. And, while they often do not volunteer to testify in court, they can be subpoenaed to come to court to testify.

The records at the child’s doctor’s office typically will mention the dates of appointments, who brought the child to that appointment, and the health condition of the child when seen by the doctor. If one parent has been more involved in the child’s healthcare than the other one has, then the Judge can often determine that to be the case by reviewing those records, assuming that the proper foundation has been laid by your lawyer to make those records admissible in evidence.

Child custody cases are emotional. Both parents may truly believe, and testify, that their children would be better off with them. The people discussed in this article who have observed the children and the parents, over substantial periods of time, can often help clarify to the court where those kids will, truly, be better off.

And, just as important as the evidence that we do want the court to hear, this is the kind of evidence that we do not want to have presented against us in a child custody case, if we hope to win that case. Thanks for taking the time to read this article. As always, we appreciate your comments and feedback.

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Can Courts Douse the Flamer’s Flames? Defamation Remedies in Texas

In this day and age, most of us are connected to scores and scores of other people electronically. Just think how many Facebook friends, Twitter followers, and Linkedin connections you have. Many of us also have virtual relationships with folks on Tumblr, Pinterest, and elsewhere. How easy would it be for someone—a disgruntled former business partner, employee, or lover to damage your standing and reputation with many of the people to whom you are connected? How might that damage cost you?

Defamation —the making of untrue statements about another person which damages that other person’s reputation, has been actionable since before the founding of the United States-indeed, the courts of the King of England recognized defamation as being actionable as early as the Sixteenth Century. Today, however it is much easier to spread hurtful lies about another with just the click of a mouse. And, those lies can spread much further and faster than ever before.

If someone posts something online which defames you, what can you do? Are you powerless to be able to have those hurtful lies removed? If Texas courts have the appropriate jurisdiction to handle the case , can you have a Texas court look at the remarks in question, and if that court finds the remarks to be defamatory, take action to remedy or undo the harmful effects of those lies? The Supreme Court of Texas recently decided a case on that matter. 

While both the Texas Constitution, and United States Constitution, protect the freedom that we all have to speak freely, it is well-established under Texas jurisprudence that “speech is not an absolute right,” and that defamatory speech is unprotected under both the Texas and United States constitutions, since such wrongful speech is “an abuse of the privilege to speak freely.” Similarly, in a long line of cases going back to the founding of this country, the United States Supreme Court has ruled that the Freedom of Speech is “not an absolute right, and the state may punish its abuse.”

So, what kind of “punishment” may be imposed when someone abuses his or her freedom of speech? Under Texas law, the punishment has always been the award of monetary damages. Unfortunately, Texas law did not provide the right to have a court order the removal of the offensive speech once it had been found to be defamatory. And so, with the damaging speech in place, its harmful effects could continue indefinitely, until now.

On August 29, 2014, the Supreme Court of Texas decided in the case of Kinney v. Barnes that in addition to awarding a money judgment for the damage which a defamatory posting causes to someone’s reputation, a Texas court can now properly issue “a permanent Injunction requiring the removal of posted speech that has been adjudicated defamatory…” This is a big change from the prior law in Texas and one that is a breakthrough for the victims of defamation.

The traditional remedy for defamatory speech, i.e. the award of monetary damages, is also still available. Those damages “can include economic damages like lost income, noneconomic damages like loss of reputation and mental anguish, and even punitive damages upon a finding of actual malice.” Besides remedying the harmful effects of hurtful statements, the award of monetary damages may also act as a powerful deterrent to the making of the statements in the first place.

So, while the state and federal constitutions prohibit a Texas court from ordering that a person not make future remarks which may be defamatory, if those remarks are, in fact, made, then a lawsuit against the maker of those remarks may be filed. And, if they are found to be defamatory, then the court can order that the remarks be removed, and that monetary damages be awarded as just compensation.

In the Internet Age, published remarks can go around the World at the speed of light. The effects of untrue remarks are leveraged in their ability to harm. The power to have defamatory remarks removed would seem to be a valuable one.

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Planning for Social Media after Death

Don’t forget about your accounts. They live on, ghost ships of your former life – the Facebook account, the Twitter feed. They have been silenced by your departure, but in many cases will remain alive for years to come unless the platform is notified of your death by relatives. It may be upsetting to your relatives to see mourners post to your Facebook after your death, a process that has become standard in the last few years, a kind of informal funeral guest book.

Imagine your spouse or children having to cope with these reminders for months as people learn of your death. While it may be comforting immediately after your funeral, at some point the accounts will need to be finalized and removed. Currently, the process is ad hoc; there is no button on Twitter to report a user’s death and take down their account. You must navigate the help files to find out how to delete accounts, and unless you have the user ID and password, it can be very difficult and time consuming to go through the deletion process.

When we pass, we (of course) want to make things as easy as possible for those whom we leave behind. Good planning can make a significant difference in this regard. Part of that good planning is for your will to take into account your digital trail, and leave some instructions for its disposal (if that is what you want to happen).

That’s why, in addition to a will, another document, addressed to your Executor, and relating to your digital life, is so important. Social media accounts, online banking, investment accounts, email, all the elements of your online existence, should be cleaned up after your death. You will make your executor’s job much easier by providing the relevant information in a spreadsheet which contains your account login information, password, and any account data such as banking account numbers.

Creating this document will take only an hour or two, but will eliminate hours or weeks of work on the part of your loved ones. In Excel, simply list the accounts on the left then the user name and password on the right. You will want to periodically update the file, every six months or annually, as information changes or passwords are updated. Keep the file on your desktop where it can easily be found, as well as a hard or digital copy with your will.

Provide explicit instructions as to the end date of your social media accounts. A good rule of thumb is to terminate them within 60 days of your death. If your spouse wants to keep a record of the nice things people said about you, it’s easily printed for posterity. This general housecleaning of your digital life will allow your executor to wrap up loose ends as easily as possible, and is a thoughtful gift to leave behind.

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