Introduction

Litigation in DFPS cases can be confounding to any lawyer or Judge. While everyone may be operating from the same basic text, i.e. the Texas Family Code, The Texas Constitution and the U.S. Constitution, there are a great many differences between how the statutes and constitutional provisions are interpreted and applied. It is frustrating, at best, when the applications of the same law can vary so widely from court to court in the juvenile courts and from the juvenile courts to the family courts. On top of these considerations are the idiosyncrasies and beliefs of the attorneys ad litem or ad litem(s) and/or guardian(s) ad litem. In some cases there will be multiple ad items and experts. In addition, the structural or organizational set up of DFPS allows for case decision making without much logic, consistency, or common sense. There are no concrete standards upon which a determination will be made as to whether a case is a termination case or a reunification case.

In the midst of this confusion, DFPS sends college educated caseworkers to the field and to the court with very little real training and asks them to stand by the decisions of their supervisors and/or program directors even if they fundamentally disagree with the position and even if it does not make sense. These overworked and underpaid caseworkers (who are considered experts in some courts and not in others) are left to defend this position with a Judge whose job it is to watch out for the best interest of the child. It seems unimaginable that a Judge would hear at a "show cause" or a "trial" a response such as, "I don't know, I would have to staff that with my supervisor." It happens with alarming frequency. It is frustrating, crazy making, and at times incomprehensible. Over the past thirty (30) years I have tried to make sense of this situation and have developed some approaches to DFPS litigation which have helped make the practice a little more palatable. The principles upon which the practice is based are honesty, diligence, and accountability. It is my hope that these suggestions will be useful to those that employ them.