Recent News

On December 6, 2006, Rep. Elliott Naishtat (D-Austin) introduced HB 363, which would remove the words "case management services" from Sections 264.106 and 264.1063 of the Texas Family Code and from Chapter 45 of the Human Resources Code. These changes would take CPS case management services out of the privatization plan enacted last session, while keeping provisions for privatization of foster care services in the statutes.

On November 30, 2006, the U.S. Department of Justice will sponsor National Methamphetamine Awareness Day to generate awareness about the damaging effects of meth abuse. There will be a national event hosted by Attorney General Alberto Gonzales and local educational events throughout the country. Watch your local news for details. Click here for more information from the Department of Justice.

On November 14, Senator Jane Nelson, R-Lewisville, the Senate Health and Human Services Committee's chairwoman, heard testimony regarding the privatization of CPS services. Sen. Nelson indicated that legislation passed to privatize various CPS services was intended to provide protections that would prevent injuries to children in foster care. The death of 16-month-old Christian Nieto in a Corsicana foster home, managed by a private agency, led Nelson to ask child abuse professionals testifying at the hearing numerous questions about the legislation. The current legislation calls for the outsourcing of various CPS services to private agencies in all regions by 2011. Case management services, which include monitoring the child's progress and the efforts made by the parents, are also to be privatized under this legislation. Sen. Nelson also raised questions about the implementation of this plan. The Austin American-Statesman quotes her as saying, "We are not privatizing the printing of telephone books here. We are talking about children, and we can't make mistakes." Practitioners who have a position or information on the issue should call their state legislators and/or Sen. Nelson's office.

A Florida state circuit judge has ordered Florida's Department of Children and Families ("DCF") to use only licensed facilities for emergency placement of children temporarily removed from their homes. DCF offices in at least two areas of the state were allowing children to sleep in their conference rooms instead of in shelters or foster homes. The ruling came Nov. 9 in the class-action suit, Susan C. v. Florida Department of Children & Family Services, filed on April 4, 2006, on behalf of children being held in a conference room in Tallahassee. DCF had argued that it was not subject to the licensing requirements in state law.

World-renowned child psychiatrist Bruce D. Perry, M.D., Ph.D., will speak in Dallas on Tuesday, October 31, 2006, from 12:00-1:30 p.m. at the 10th Anniversary Luncheon Celebration of AVANCE-Dallas in the Pavillion at Belo Mansion, 2101 Ross Ave. Dr. Perry is internationally acclaimed for his clinical research and practice focusing on the long-term effects of neglect and trauma on children. His work has been critical in understanding how childhood experiences, such as neglect and traumatic stress, impact the development of the brain. Click here for full details.

The National Association of Counsel for Children (NACC) proudly introduced the first group of attorneys to be certified as Child Welfare Law Specialists at the 29th Annual Children's Law Conference in Louisville, Kentucky. In October 2006, eighty-five attorneys, who represent children, parents, and state welfare agencies in abuse and neglect cases, received their certificates as Child Welfare Law Specialists at an awards ceremony in Louisville. At this time, certification is only available in California, Michigan, and New Mexico, but the NACC is beginning to offer the program in other jurisdictions. For more information, including how to contact the NACC about certification in Texas, click here.

In an opinion that questions the practical applications and constitutionality of newly-enacted Tex. Fam. Code § 263.405(i), the Fort Worth Court of Appeals reluctantly dismissed the appeal of a mother whose parental rights had been terminated. In the Interest of D.A.R., 201 S.W.3d 229 (Tex. App.--Fort Worth 2006). The mother failed to file a statement of points with her specific challenges to the judgment. The court concluded that the new statute clearly requires a statement of points to be specific and not simply allege that the evidence was legally and factually insufficient. The court noted that this provision was enacted in response to conflicting opinions in the courts of appeal regarding this issue.

In a challenge to the constitutionality of Section 263.405 of the Texas Family Code, which concerns frivolous hearings, the Fort Worth Court of Appeals held that there was no equal protection violation because the statute applies equally to indigent and non-indigent parents and to parents in termination suits initiated by TDFPS and in suits by private individuals. In the Interest of T.C. and G.C., 200 S.W.3d 788 (Tex. App. -- Fort Worth 2006).

The National Conference of Commissioners on Uniform State Laws published the "Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act" in July 2006. The Act sets forth the circumstances under which children are appointed legal representatives in abuse or neglect proceedings, as well as in custody proceedings. A child can be appointed a "best interests attorney," to "protect the child's best interests without being bound by the child's directives or objectives," a "child's attorney," who "provides legal representation for a child," or a "court-appointed advisor," an "individual, not functioning as an attorney, appointed to assist the court in determining the best interests of a child." Under the Uniform Act, the court shall appoint either a child's attorney or a best interests attorney in an abuse or neglect proceeding. The court may consider factors such as the child's age and developmental level, any desire for an attorney expressed by the child, whether the child has expressed objectives in the proceeding, and the value of an independent advocate for the child's best interest. Individual states may choose between different alternatives in determining under what circumstances these three categories of attorneys can be appointed. To read the Act, click here.

The Sixth Court of Appeals in In the Interest of C.M.C. and J.T.C., 192 S.W.3d 866 (Tex. App.--Texarkana 2006) affirmed the trial court's dismissal of a petition for adoption filed by grandparents. Parental rights had been terminated previously. The grandparents argued that the issue of standing could be decided only by a motion for summary judgment requiring 21 days notice to them. CPS had filed a motion to dismiss challenging the grandparents' standing. The court ruled that dismissal for lack of standing is not a decision on the merits of the case; it is an issue of subject matter jurisdiction and can be decided on a plea to the jurisdiction. The CPS motion was, in effect, a plea to the jurisdiction. In addition, the grandparents did not raise an issue of fact on standing because they did not meet the requirement under Section 102.005 of the Texas Family Code that they have had "substantial past contact" with the children. The evidence presented by affidavit did not, as a matter of law, meet the criteria.

The Amarillo Court of Appeals reversed the convictions and rendered acquittal of two women who had used drugs while pregnant and had pled guilty to violation of Texas Health and Safety Code section 481.122(a)(1), which states it is an offense to knowingly deliver a controlled substance to a child. In Ward v. State, 188 S.W.3d 874 (Tx. App.--Amarillo 2006), the court of appeals noted that "deliver" means to transfer possession, actually or constructively. The State had charged Ward with actual transfer, but the evidence showed only that the unborn child had the drug in his bloodstream. The court noted that there was no evidence that "the unborn child actually handled, touched, manipulated or otherwise exercised possession over the drug." Citing precedent that possession of a drug requires the ability to exercise control over it, the court concluded that mere presence of drugs in the blood does not constitute possession and is, therefore, not evidence of "delivery" of a controlled substance. The court did not consider whether the unborn child fit the definition of "child" in the statute, did not consider the issue of constructive transfer, and did not consider the constitutional issues raised. In the unpublished opinion in Smith v. State, No. 07-04-0490-CR, 2006 Tex. App. LEXIS 2370 (Tex. App.--Amarillo Mar. 29, 2006), the court adopted the same reasoning as in Ward. Both opinions were issued March 29, 2006.

TLC is very excited about the addition of Charles Childress to Colleague Connection -- Attorneys. Charles Childress is a director of the Children's Rights Clinic at the University of Texas School of Law. He is also a contributor and commentator for Sampson and Tindall's Texas Family Code Annotated and for the State Bar Family Law Section report. Thanks to all of you, Colleague Connection is a great help to many practicing attorneys. We appreciate how valuable sharing ideas and issues can be. Charles Childress' participation (as time permits) will benefit all of us by adding to our collective expertise and experience. Please continue sending your questions and comments. The input so many of you have provided to others has been invaluable. Click here for a biographical sketch on Charles. Click here to see his resume.

Texas Attorney General Greg Abbott issued an opinion on February 28, 2006, in response to a request by the heads of two committees of the Texas Legislature. The request concerned whether Section 107.004(d) of the Texas Family Code requires an attorney ad litem appointed under Chapter 262 or 263 to meet in person with a child over four years of age before each court hearing or if a telephone interview satisfies that provision. Additionally, the request asked if, under Section 107.004(e) of the Texas Family Code, the court has meaningful discretion to determine if an attorney has shown good cause not to comply with subsection (d) because a meeting was not feasible or in the child's best interest. The Attorney General reviewed the meaning of "meet" and determined that the statute requires a face to face meeting with the child prior to each court hearing. Using the common definition of "feasible," the Attorney General stated that a court has discretion to find that good cause is established if the attorney shows that compliance was impracticable, not capable of being done, or was not in the best interest of the child. Click here to see the full text of the opinion.

The First Court of Appeals in Houston reversed and remanded a trial court's judgment involving three frozen embryos created during a marriage. In the only contested issue of the divorce, the trial court awarded the wife possession of the embryos despite a written agreement signed by the husband and the wife authorizing disposal of the embryos in the event of divorce. The written agreement was part of the documentation signed at the fertility clinic. The court of appeals held that the trial court abused its discretion and improperly rewrote the parties' agreement. It remanded for an order to discard the embryos. Roman v. Roman , No. 01-04-00541-CV, 2006 Tex. App. -- Houston [1st Dist.] Feb. 9, 2006).

Now you can link directly to the Department of Family and Protective Services ("DFPS") Child Protective Services (CPS) Handbook and the DFPS Licensing and Policy and Procedures Handbook. Once you select either handbook, choose an item in the left column of the page which appears in order to view the selected section of the handbook. A scroll bar will not appear until you make that selection. Click here to link to the CPS and Licensing Handbooks.