Anatomy Of An Adversary Hearing

(A)Introduction

A fundamental precept of jurisprudence in the United States is that no one can be deprived of their life, liberty or property without due process of law U.S. Const. Amend. IV, XIV; Tex. Const. Art 1, Sec. 19. As a matter of course, as citizens, we convey to our state and federal government the ability in some ways to compromise our individual liberties so that we can live in a safer, more orderly society where certain behaviors are acceptable and others are not. For years we have elected both legislators and jurists who have enacted and enforced laws that protected children from abuse and neglect. We have laws compelling the reporting and investigation of abuse and neglect allegations. There are penalties for false reports, frivolous claims against persons reporting and for failing to report. See §261.001, et. seq.

The Texas Legislature has enacted legislation under Chapter 262 of the Texas Family Code that outlines procedures which should be followed in a suit brought by the Department of Family and Protective Services ("DFPS"). Frequently, these suits put into conflict the rights and liberties of parents against the rights and liberties of children. The parent-child relationship is a constitutionally protected relationship. Santosky v. Kramer, 455 U.S. 745 (1982). In any action to terminate the parent-child relationship, the state must meet a clear and convincing evidence burden. Santosky at 71, In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980); §161.001. In 1997, congress enacted the Adoption and Safe Families Act ("ASFA"). Amongst other changes, ASFA took the case flow direction away from long term foster care and family rehabilitation and made an emphasis on the health and safety of the child. 42 U.S.C.A. 678, et seq. See also §262.001.

At the same time, the Texas Legislature mandated time lines for DFPS suits. In Texas, a suit brought by DFPS must be resolved within one (1) year with one possible extension of up to six (6) months. §263.401. This means that both the state and the other parties to the litigation must be diligent in the preparation of their respective positions.

(B)The Emergency Hearing

An Emergency Hearing is frequently conducted by affidavit and is ex parte, without citation, notice and opportunity to be heard. §262.100. There are additional statutory standards for each specific type of court hearing outlining the basis upon which the Court is authorized to act. These include an Emergency Order Authorizing DFPS to take possession of a child (§262.102); Standards for Decision at Initial Hearing After Taking Possession of a Child Without a Court Order in Emergency (§262.170); Full Adversary Hearing (§262.201); and Hearing When Child is Not in Possession of Governmental Entity (§262.205). If a child is not returned to a parent or guardian at the Emergency Hearing, the court is required to hold a Full Adversary Hearing. §262.201(a).

(C)Child Placement Resources Form

Prior to the Adversary Hearing, DFPS shall, as soon as possible after investigating and determining that removal of a child may be warranted, provide a parent or other person having legal custody of a child the Proposed Child Placement Resources Form §262.114(a) (Appendix "H" - Child Caregiver Resource Form). The Family Code requires that after DFPS provides the form, the parent or other person having legal custody has the opportunity to identify in the form three (3) individuals who could be either relative or designated caregivers (§264.751) and return the form to the DFPS representative. §261.307(2).

Before the Full Adversary Hearing under §262.201, DFPS must:

  1. Perform a background check and a criminal history check of each of the relatives or designated caregivers;
  2. Shall evaluate each person listed on the form to determine the relative or other designated individual who would be the most appropriate substitute caregiver for the child;
  3. Must complete a home study of the most appropriate substitute caregiver, if any; and
  4. Until DFPS identifies a relative or other designated caregiver to be a substitute caregiver, it must continue to explore substitute caregiver options. §262.114(a).

At the Full Adversary Hearing (after redacting social security numbers), DFPS shall file with the court:

  1. A copy of each proposed placement resources form completed by the parent or other person having legal custody of the child;
  2. A copy of the completed home study; and
  3. The name of the relative or other designated caregiver, if any, with whom the child has been placed. 262.114 (a-1).

If DFPS does not place with a relative or other designated caregiver by the time of the Adversary Hearing, DFPS shall file with the Court a statement that explains:

  1. The reasons why DFPS has not placed the child with a relative or other designated caregiver listed on the proposed child placement resources form; and
  2. The actions DFPS is taking, if any, to place the child with a relative or other designated caregiver. §262.114(a-2).

DFPS may place a child with a relative or other designated caregiver if DFPS determines it is in the best interest of the child. DFPS may do this before conducting the background and criminal history check or home study. §262.114(b).

At the Adversary Hearing, the Court shall require:

  1. Each parent, alleged father or relative of the child before the court to complete the proposed child placement resources form;
  2. File the form with the court (if not previously filed by DFPS); and
  3. Provide DFPS with information necessary to locate any other absent parent, alleged father or relative of the child. §262.201(c).

The Family Code gives DFPS full authority to make placement with or without the home study and background and criminal history checks. Up to the Full Adversary Hearing, none of the statutes controlling a DFPS proceeding appear to give the court any authority over placement other than to Order the removal; deny the removal; sustain the removal of the child from the parent, managing conservator, possessory conservator, guardian, caretaker, or caretaker who is presently entitled to possession of the child; or Order the return of the child to parent or person entitled to possession. §262.107.

Then again, a District Court Judge has a lot of power and it may be within the generic powers of a District Court Judge under the "best interest of the child standards" to enter no movement orders prior to the Adversary Hearing. §153.002. This statute instructs the Court to consider best interest of the child in determining the issues of conservatorship and possession, and access to the child. The Family Code does allow the Court to determine initial conservatorship without notice or an adversary hearing, if the order is an emergency order sought by DFPS. §105.001. Accordingly, absent a bona fide emergency, supported by an Affidavit, the Court should not enter any restrictive orders and should not appoint DFPS as Temporary Managing Conservator.

If the Courts would force DFPS to follow the mandates of §262.114, we would have fewer children in foster care, we would appropriately shift the burden of responsibility to the parents to name their proposed placements, in writing, and we could significantly reduce the number of media cases in which some relative comes in and claims that either DFPS or the Court did not evaluate their home as a placement.

Because DFPS has an ongoing statutory duty to continue to explore relative or designated caregiver options until they find one under §262.114(a), there might still be media or politically based cases, but the numbers should be relatively few.

Why would any lawyer, ad litem or the Court proceed with a §262.201 Adversary Hearing until DFPS had complied with §262.114? A Motion for Continuance of Adversary Hearing is attached to this paper. ("Appendix I"). The unambiguous legislative intent is the reduction in foster care placements and the increase in relative and designated caregiver placements.

To support the ongoing duty imposed upon DFPS in §262.114, the Court is required, at the Adversary Hearing, to provide the form to each parent, alleged father or relative of the child before the Court to complete and file the Proposed Child Placement Resources Form §262.201(c). This ensures that DFPS searches in both sides of the family for placement.

(D)The Adversary Hearing (§262.201)

The right to an Adversary or Show Cause Hearing derives from legislative enactments from the Texas Family Code and by a decision of the United States Supreme Court which held that each parent or alleged parent is entitled to a hearing when the government has taken custody of a child. At such hearing or hearings (if other parent enters the case after it has started), the government has the burden of establishing its right to assume control over the children. Stanley v. Illinois, 405 U.S. 645 (1972).

Additionally, §262 outlines both the burdens placed on DFPS but also the requested findings of the Court. Until recently, there was little case law on the subject because parties do not generally have the right of appeal on Temporary Orders. Two cases were decided in 2008 that significantly altered the perspective on a §262 Adversary Hearing.

The decision of the Austin Court of Appeals in the FLDS case, and the Gates decision by the 5th Circuit Court of Appeals, demonstrated that a successful challenge to the DFPS actions at the Adversary Hearing will alter the court and direction of the entire case. In re Steed, 03-08-00235-CV, 2008 WL 2132014 (Tex.App.-Austin May 22, 2008, orig.proceeding)(memo.op.) (No. 03-08-00235-CV), mandamus denied, In re DFPS, 255 S.W. 3rd 613 613 (Tex.2008). Gates v. Texas Dep't of Protective and Regulatory Servs., 537 F.3d. 404 (5th Cir. 2008). An essential practice standard is familiarity with §262.201 (Adversary Hearing) the Steed case, and the Gates case. These cases principally stand for the proposition that DFPS should not be allowed to remove children from parents unless that home or those parents present an imminent risk of physical harm to the children. Additionally, the Texas Family Code requires that at the conclusion of the Adversary Hearing, the Court shall place the children with the custodial parent, the non-custodial parent or a relative unless the Court finds that it is not in the best interest of the child. §262.201(e).

The constitutionally protected parent-child relationship dictates a legal presumption of both parental placement and a limited right of the government to interfere in the parent-child relationship. Santosky v. Kramer, 455 U.S. 745 (1982); In the Interest of G.M., 596 S.W.2d 846 (Tex. 1980). Our statutes make the same presumption by requiring an elevated burden of proof and a family placement presumption. It would be foolish not to recognize risks inherent in this process. The children have the same constitutional rights as parents to the preservation of the parent-child relationship. Advocacy sometimes guides lawyers, judges and volunteers around basic statutory and constitutional problems. Yet, there is nothing in the case law or in the Texas Statutes that lowers or diminishes the standards and burden of proof which is on DFPS at the Adversary Hearing. §262.201.

In order to keep a child from being wrongfully withheld from his/her parents or relatives, DFPS must prove that such a placement is not in the best interest of the child. Separate statutes require DFPS to have done a criminal and DFPS background check on the relatives or other designated individuals identified as a potential care givers prior to the Adversary Hearing. §262.114. Whether DFPS is seeking conservatorship or termination, most of the time current practice seems to reflect that compliance with the requirements of §262.114 has not been accomplished before the Adversary Hearing. The Judge is then left with the task of either returning the children (with a perception that a problem or imminent danger might exist but it has not been proven) or keeping the children in DFPS custody and making findings that are usually based upon suspicion rather than factually based evidence. DFPS usually argues that it needs more time to do full home studies on possible placements. These placements also appear to be driven by the mother and her family rather than both the mother's family and the father's family.

There is no place under Texas Law that permits the Agency to keep possession of the children and to not meet their burden of proof at the Adversary Hearing. The parent does not have to prove that parental or other placement is in the best interest of the children. DFPS has to prove that it is not in their best interest. §262.201. In other words, if DFPS rests without having met the burden of proof, the law requires the Court to place with parents or relatives. No one wants to see a child injured or killed. Judges frequently say that they "are going to err on the side of caution". There is also nothing that prevents the court from continuing the hearing in order for additional information to be acquired. In one case, the Texarkana Court of Appeals held there was no proof of endangerment even though Mother has lost her rights by termination to nine (9) prior children. In re Cochran, 151 S.W. 3d 275 (Tex. App. - Texarkana 2004, original proceeding).

The only acceptable solution to this is to make sure the children are protected and that the law is followed. Sometimes, it may not be possible to do both. Courts "shall" make the placement, return the child or deny the agency's petition. Since pick ups are not allowed based upon risk, placements should not be denied to parents or relatives based either upon perceived risk or because the burden of proof was not met by the government. In the Steed case the Third Court of Appeals did not dismiss the litigation. However, it did order the return of the children to the parents. This means there was enough evidence for DFPS to go forward with the litigation but not enough to maintain possession. There is no reason that the law in West Texas should be different that the law or practice on the Gulf Coast, East Texas, or North Texas. If this were put into practice it would be the burden equivalent of a judicial monitoring of an FBSS type of case. This type of arrangement would work well in some cases and probably not so well in others. It would require a paradigm shift. It would require the persons in charge of decision making to presume that the significant disruption of a parent-child relationship:

  1. is harmful to the child;
  2. damaging to need of the parent and child to bond;
  3. places children at risk of abuse and neglect in the foster care system; and
  4. disproportionately affects the relationship between the non abusive or non negligent parent and the child.

At the heart of the Adversary Hearing, the Court is required by law to make the following findings:

  1. Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian, caretaker or custodian entitled to possession and the Temporary Order, if any, has been dissolved, a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity.
  2. At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that: (a) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; (b) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and (c) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.
  3. If the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing danger to the physical health or safety of the child and for the child to remain in the home is contrary to the welfare of the child, the court shall issue an appropriate temporary order under Chapter 105. The court shall require each parent, alleged father, or relative of the child before the court to complete the proposed child placement resources form provided under Section 261.307, and file the form with the court; if the form has not been previously provided, and provide the Department of Family and Protective Services with information necessary to locate any other absent parent, alleged father, or relative of the child. The court shall inform each parent, alleged father, or relative of the child before the court that the person's failure to submit the proposed child placement resources form will not delay any court proceedings relating to the child. The court shall inform each parent in open court that parental and custodial rights and duties may be subject to restriction or to termination unless the parent or parents are willing and able to provide the child with a safe environment. If the court finds that the child requires protection from family violence by a member of the child's family or household, the court shall render a protective order under Title 4 for the child. In this subsection, "family violence" has the meaning assigned by Section 71.004.
  4. In determining whether there is a continuing danger to the physical health or safety of the child, the court may consider whether the household to which the child would be returned includes a person who: (a) has abused or neglected another child in a manner that caused serious injury to or the death of the other child; or (b) has sexually abused another child.
  5. The court shall place a child removed from the child's custodial parent with the child's noncustodial parent or with a relative of the child if placement with the noncustodial parent is inappropriate, unless placement with the noncustodial parent or a relative is not in the best interest of the child. §262.201(e).

In cases upon which DFPS subsequently tries to seek termination because a parent failed to follow the Family Service Plan (i.e. §161.001(1)(O)), the burden of proof changes to clear and convincing and one (1) element is the child must have been removed from the parent for the parent's abuse or neglect of the child. In Houston, depending upon the Court of Appeals that is drawn, this finding can be made relative to "abuse or neglect" of the child by that parent (1st Court of Appeals; In the Interest of A.A.A., 265 S.W.3rd 507 (Tex. App.-Houston [1st Dist.] pet. denied) or "abuse or neglect of a child (14th Court of Appeals; In the Interest of S.N., 287 S.W. 3rd 183 (Tex. App. - Houston [14th Dist.] pet. denied). Obviously, when the case proceeds to trial, the existence of a prior finding in the Temporary Order from the Emergency Hearing or Adversary Hearing could prove both problematic and essential. In short, zealous representation from the point of the Adversary Hearing is very important and could have a dramatic influence on the outcome of the case. In the absence of proof at trial that the child was removed from the parent for abuse or neglect of the child by that parent, zealous advocates should argue that termination under §161.001(1)(0) should not be available. Counsel should track the outcomes of two (2) cases currently pending in the Texas Supreme Court on this issue. In re E.C.R., 01-11-00791-CV, 2012 WL 897777 (Tex. App.--Houston [1st Dist.] Mar. 15, 2012, no. pet. h.) and In re K.N.D., S.W.3d, 2012 WL 6721047, Tex.App.-Hous. (1 Dist.), December 21, 2012.

In addition to the Cochran case out of Texarkana; the Steed case out of Austin and the Gates case from U.S. 5th Circuit Court of Appeals (P.5. infra), it is important to be aware of another recent case.

On January 15, 2013, the 14th Court of Appeals partially granted a Writ of Mandamus sought on behalf of a mother against the Hon. Jim York, Judge of the 246th District Court of Harris County, Texas. Mother complained that the trial court abused its discretion by consolidating the case and by not releasing the children to her at the Adversary Hearing. The court did not find error in the consolidation but did find error in the Conservatorship Order entered after the Adversary Hearing. The record reflected that the children were put into Emergency Conservatorship of DFPS because the mother had been involuntarily picked up and placed in the Harris County Psychiatric Center on or about September 20, 2012. The children were removed from the home of the paternal grandparents on October 2, 2012. They had been placed there by agreement of the father. Mother was discharged from HCPC on September 26, 2012 without any psychiatric diagnosis or recommendation for further psychological or psychiatric treatment. DFPS warned the mother that she could not pick up her children after her discharge. After learning that the paternal grandmother had been hospitalized, DFPS removed the children and placed them in foster care. On October 11, 2012, the Court extended the Emergency Order and declined to consider oral requests for return of the children to the home of the grandparents. The mother had not been served and did not appear.

On October 25, 2012, the Court conducted an Adversary Hearing even though one of the fathers had not been served. Mother's counsel introduced, without objection, a fourteen (14) page document from HCPC records which included her initial psychiatric evaluation and a multidisciplinary discharge document. The mother requested immediate return of the children and dismissal of the case. The Court signed "Temporary Orders After Adversary Hearing" on October 25, 2012 appointing DFPS as Sole Managing Conservator of the children and ordered that the children be immediately placed back with the paternal grandmother.

The Court of Appeals held that the record did not support the orders of the Court and that on the record, the trial court could have only come to one reasonable conclusion, i.e. that DFPS failed to meet its burden under §262.201(b) of the Texas Family Code. The Court ordered the children to be returned to the mother. In re Tomica Henderson (No. 14-12-01074-CV)(Tex.App.-Houston[14thDist]) (January 15, 2013)(Original Proceeding).

Short of trial, the adversary hearing is the most important hearing in the case. From it derives the course and flow of the litigation. If possible, this is where the fight should be. If counsel for a parent is appointed or hired in sufficient time to prepare or for an adversary hearing, it is critically important that challenges be made under both constitutional, statutory and common law grounds. If there is not enough time to prepare or secure witnesses or if DFPS has not strictly followed §262.114, then request a continuance and request DFPS be ordered to comply with the statutes by a date and time certain. Ad Litems for the children and the courts should be insisting on this compliance as well. If there has not been compliance or there has not been enough time to prepare for the Adversary Hearing and request a continuance (Appendix "I"). If the continuance request is denied or if DFPS fails to meet its burden of proof, request dismissal and alternatively immediate return or placement of the child. (Appendix "J").