Why Family Lawyers Hate DFPS Cases

Fundamentally, lawyers like consistency. It allows them to better advise their clients about what to expect of a judge and the justice system when they go to court. Consistency and routine are not very familiar terms in DFPS litigation. Judges who would never allow one parent to exclude another parent from access and possession prior to a show cause hearing frequently do so in DFPS cases. Some courts still operate under the umbrella of prior history or current concern rather than the standards of "immediate danger to the physical safety of the child" as required by the Texas Supreme Court and the Fifth Circuit Court of Appeals. 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, and Gates v. Texas Dep't of Protective and Regulatory Servs., 537 F.3d. 404 (5th Cir. 2008).

Court experiences also differ based upon the particular judge's prior experience of serious bodily injury or death of a child in cases where the child and/or parents had previously been before the Court. These judges are more likely to default into "best interest of the child" when facts are unknown rather than require the same standard of proof in all cases. This lower standard indirectly endorses a lack of preparedness on the part of DFPS and tells parties that they need not worry about meeting their burden of proof. DFPS emergency custody orders can be ex parte and based upon hearsay. Emergency orders are frequently entered before a parent is even served. DFPS is required to try to find family, relatives, or fictive kinship placement before the adversary hearing but rarely does so. §262.114. The constitutional statutory and regulatory preference is in favor of families and extended families, but some DFPS units and some courts seem to prefer foster placement. A parent that is a late comer to the DFPS litigation is entitled to an adversary hearing, but some courts do not allow another adversary hearing farther along in the case. Stanley v. Illinois, 405 U.S. 645 (1972).

A case which turns hostile in family court could have virtually all of the elements of §161.001(1)(E) present in the case and termination is never within anyone's consideration. District Court judges have immense power and can use that power to effectuate appropriate relief. To the average family law practitioner, the idea of termination where a parent has an alcohol or drug problem may be desired but is never really a consideration. Judges will not end the relationship or the duty to support. In Juvenile Court, termination is routine in such cases when it is requested by the government and, as a result, the children are pulled from everything and everyone they know.

In the final analysis, family lawyers hate DFPS cases because they make little sense. The burden of proof is higher but termination is easier to secure when the government is the Petitioner rather than a private party. Custody evaluations in family cases usually require expert witnesses with exceptional credentials. DFPS termination and custody trials turn on DFPS caseworkers (as experts) or DFPS contract providers (of questionable credentials) whose loyalty is by general rule to DFPS. Furthermore, judges who preside over family cases, change in both attitude and demeanor when they hear the DFPS docket. While there are exceptional lawyers in the DFPS system, some people question the thoroughness, objectivity, and soundness of a system which, in some cases, involves the government paying for everyone involved.