Defending A Dfps Case 262 Hearing: Ethical Considerations And Effective Assistance Of Counsel

Presented at:
4 th Annual Adjusting the Bar Conference
Saturday, April 12, 2014
The Council on Alcohol and Drug Abuse
303 Jackson Hill
Houston, TX 77007

Presented by:
William B. Connolly
Connolly & Shireman LLP
Attorneys at Law
2211 Norfolk Street, Suite 737
Houston, TX 77098
Telephone: (713) 520-5757
Fax: (713) 520-6644
E-Mail: wbc@conlawfirm.com
Web: www.connollyshireman.com

DEFENDING A DFPS CASE 262 HEARING; ETHICAL CONSIDERATIONS AND EFFECTIVE ASSISTANCE OF COUNSEL

The point of a 262 Adversary Hearing is to determine whether an emergency order was valid, whether an emergency actually existed or if one did exist, have the conditions been sufficiently resolved to enable the child and/or a parent(s) return to the home and reside together. If that is not possible, the statute clearly lays out the requirements and the burdens of proof, the legal standards for the decision making, and the mandatory directives to the Court if return to the parent or the child's home is not safe or suitable. §262.201.

My goal with this new paper is to build upon last year's paper (Appendix "A"), and to delve a bit deeper into the significance of the June 14, 2013 decision of the Texas Supreme Court In the Interest of E.C.R., 402 S.W.3 rd 239 (Tex. 2014) . In addition, there are some pragmatic suggestions on how to deal with pleadings and court orders at the initial hearings and why lawyers representing parents need to be on their toes and object to certain matters. Awareness of E.C.R. and what it means and the suggestions made herein are intended to increase the quality of the representation and protect the rights of parents and children in termination cases.

I. IN THE INTEREST OF E.C.R., 402 S.W.3 rd 239 (Tex. 2014)

What does this case really mean and how can a parent's counsel utilize it or diminish its impact? At issue in E.C.R. was the meaning of the phrase "removed from the parent for abuse or neglect of the child" relative to §161.001(1)(0) of the Texas Family Code. This code provision allows for termination of the parent-child relationship of a parent who failed to follow the provision of a court order that specifies the steps a parent must take to obtain return of the child removed from the parent under Chapter 262 for the abuse or neglect of the child. The Supreme Court finally decided in E.C.R. to reconcile the long standing conflicts from several Courts of Appeal about the meaning of this statutory provision.

In E.C.R., the child was not present when the mother previously assaulted and injured another child, Y.C. Mother subsequently pled guilty to injury to a child (Y.C.). As a part of the investigation, E.C.R. was removed and placed with foster parents. Under §262.104, DFPS can take possession of a child without a court order if a circumstances would lead a person of ordinary prudence and caution to believe that there was an immediate danger to the physical health or safety of the child. (Opinion page 2-3). The Court referred extensively to the Affidavit even though it was never introduced into evidence at any hearing or the final trial. (Opinion page 3). The mother had been abused in the home and had attempted suicide. (Opinion page 3). There was no evidence that E.C.R. had been abused or neglected.

The trial court made the statutory findings supporting an emergency removal under §262.104 and appointed DFPS as Temporary Managing Conservator. At the Adversary Hearing the court made the statutory findings requested but no evidence was ever adduced at trial that all the statutory elements had been met.

The court ordered the mother to comply with the Family Service Plan which she failed to do. (Opinion page 4-5). The trial court terminated the mother's rights and she appealed.

The Court of Appeals reversed and rendered its finding that because the mother did not abuse or neglect this child and that DFPS failed to prove an essential element of §161.001(1)(0). (Opinion page 6) (Slide6). DFPS sought review and the Supreme Court held that because the statutory procedures for removal were followed and the trial court made the statutory findings in the Emergency Hearing Order and the Adversary Hearing Order, then the last element of §161.001(1)(0) was established as a matter of law. (Opinion page 7-18).

In doing so, the Texas Supreme Court specifically invited parent's counsel to engage in Mandamus practice to challenge the findings made in the adversary hearing and the evidence to support them. (Opinion page 17, footnote 8). They pointed out that the mother never challenged the findings of the trial court at the emergency hearing or the adversary hearing and that such findings are subject to review by Mandamus.

A FULL CONTEST OF THE EVIDENCE TO SUPPORT EACH OF THE STATUTORY ELEMENTS IS REQUIRED BY THE ADVERSARY HEARING OR THIS POINT IS CONCEDED, AS A MATTER OF LAW, AT THE FINAL TRIAL.

The child must be returned to the parent unless the following elements are established at the adversary hearing:

  1. There is danger to the physical health or safety of the child;
  2. that danger was caused by an act or a failure to act by the person entitled to possession;
  3. that it is contrary to the child's welfare for the child to remain in the home;
  4. reasonable efforts have been made by DFPS to enable the child to return to the home; and
  5. there is a substantial risk of continuing danger if the child is returned home.

Tex. Fam. Code §262.201(b).

While not overruling prior cases, according to the Texas Supreme Court, it would seem the requirements of "immediate danger to the physical health of the child" referenced by In re: DFPS and the Gates decision have been substantially diminished. In this regard, the Court evaluated whether initial §262 findings could be based on risk (injury to a sibling). (Opinion page 15-16).

This decision is of significant importance to attorneys representing parents and requires at least contemplation of earlier appellate proceedings by Mandamus. Zealous advocacy requires counsel to challenge the findings, to review the court orders and to move for dismissal or judgment (as we do in a contempt case) if DFPS fails to make its case. Another option would be to request a continuance or suggest that DFPS get a continuance if they do not have the proof necessary to go forward. If DFPS fails to meet its burden or even if they do meet it, the court is required to return the children to the 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).

In E.C.R., the Supreme Court remanded the case back to the Court of Appeals for consideration of the factual sufficiency challenge to the best interest finding. (Opinion page 20).

II. CHALLENGE THE PETITION AND AFFIDAVIT

THE TEXAS SUPREME COURT HAS, IN ESSENCE, RAISED THE BAR ON ATTORNEY STANDARDS OF CARE IN TERMINATION CASES. THEY HAVE SPECIFICALLY INDICATED THAT UNLESS THE FINDINGS OF THE TRIAL COURT ARE CHALLENGED AT THE EMERGENCY HEARING OR THE ADVERSARY HEARING, THE §262 FINDINGS MADE BY THE COURT IN THOSE HEARINGS WILL BE ESTABLISHED, AS A MATTER OF LAW, WITH RESPECT TO §161.001(1)(0).

What this means, in essence, is that a non-aware, non-abusing, non-neglectful parent can have their rights terminated if they do not comply with a court order for services even though they never did a single thing to harm a child. It means that attorneys for parents should, at a minimum, challenge and contest the beginning actions in a termination case because of the dramatic consequences that are waiting at the end of the case for the unseasoned or unaware. In short, the following minimum steps are called for:

Review the Petition for the following:

  1. Parties;
  2. Service of Citation;
  3. Facts supporting reasonable efforts to unify the family; i.e. prevent removal or to return child;
  4. Facts supporting past, present, and future danger to the child;
  5. Facts as to whom should be appointed as conservator(s);
  6. Whether DFPS has provided all parents, alleged parents, and persons before the court the Child Placement Resources form ( §261.307) before the Adversary Hearing (§262.201(c)) ;
  7. Whether DFPS has filed its placement statement on non-custodial parent, relative or designated caregiver placement on why such placement has not been made (§262.114);
  8. What orders are beings requested at the Adversary Hearing (i.e. 4C's, Family Service Plans);
  9. Whether there is factual evidence to support a finding that overcomes the parental presumption, i.e. appointment of the parents as managing conservator or parental conservator would significantly impair the physical health or emotional development of the child (§153.132, §153.191);
  10. Whether the facts support restricted access and possession by all of the parents;
  11. Whether there is factual evidence to support the whole statutory allegations of every claim possible under §161.001(1);
  12. Whether the Affidavit is actually based upon the personal knowledge of the Affiant; whether the allegations being made are accurate or distorted; are partially true or false; whether or not they are hearsay or hearsay upon hearsay; whether prior history with DFPS is a referral that was ruled out or unable to determine; whether criminal charges are pending but not adjudicated; whether a prior criminal history is established with a pen packet and proper foundation; or whether the Affidavit fails to establish, as a matter of law, the parent committed any act of abuse or neglect, or had any prior knowledge that children had been at risk of injury.

III. ORDERS

A.Emergency Hearing Orders

  1. Object to them and move to set aside any findings not meeting any or all of the statutory elements;
  2. ask for a hearing or re-hearing;
  3. be sure that DFPS has complied with the Emergency Temporary Orders involving:
    • Delivery of the Child Placement Resources Form;
    • seek compliance with the placement requirements of the Emergency Hearing Order;
    • see how the department is continuing to search for substitute caregiver options;
    • ask for the completed Home Studies and challenge non-approvals;
    • ask the court to compel DFPS to file its Statement of Non-Compliance with Non-custodial, Relative or Designated Caregiver Placements;
    • challenge any requested relief related to the imposition of any elements of a Family Service Plan before one is created or any need for certain services is established by the facts of the case; and
    • consider Mandamus.

B. Adversary Hearing Orders

  1. Object to and move to set aside any findings not meeting any or all of the statutory elements;
  2. challenge findings against placement with the non-custodial parent, relatives or other designated caregiver;
  3. challenge limits to the rights, powers, and duties of parents;
  4. challenge limits to parental possession time;
  5. challenge Orders that the parents comply with any future family service plans before they are negotiated, created, prepared, or presented to the court for approval, with or without a parent's signature, participation or knowledge of what the Plan will contain; and
  6. consider Mandamus.

On May 31, 2011, the Juvenile Courts imposed a local rule that required DFPS and the Harris County Attorneys Office to present to counsel at or before filing any order it intended the court to sign. (Appendix "B"). For awhile there was compliance, now there is mostly non-compliance. There are penalties within the rule for non-compliance. However, after E.C.R., the bigger penalty is on parents who have their parental rights terminated for non-compliance with a non-specific order which was entered after a hearing in which a service plan was never discussed and before one was ever created. Fundamentally, a non-abusing and non-neglectful parent ought to be able to refuse to cooperate with their prosecutor or adversary and ought to be able to defend a case by compelling the State to prove its case. Unfortunately, for too long, unwary counsel have allowed specific findings and orders to be placed in court orders when the issues were neither raised or discussed at the hearing, nor rendered by the court. Since the Texas Supreme Court has allowed these findings to support termination, irrespective of the statutory language, it is now incumbent on counsel to be much more strident, thorough and detailed in their approach from the outset of the case.