Defending the CPS Case

How to Level the Playing Field

Kellye A. Swanda
th
18 Annual Juvenile Law Conference
Dr. Robert O. Dawson Juvenile Law Institute
February 2, 2005

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 Kellye A. Swanda
901 Bardin Road
Arlington, Texas 76017
(817) 465-4664; fax (817) 465-4667
e-mail: [email protected]; URL: KellyeSwanda.com

Education:
B.A. in Political Science from the University of Texas at Arlington, 1987.
J.D. from Texas Wesleyan University School of Law, 1995.

Professional Experience:
Swanda & Swanda, P.C., 1999 to present, handling Adoption, CPS Matters, Juvenile Delinquency,
Divorce, Criminal, Child Custody, & Child Support.

Assistant District Attorney, Tarrant County, 1995-1999. Special prosecutor assigned to represent
Child Protective Services.

Lectures, Papers Presented and Honors:

18th Annual Juvenile Law Conference – “Defending a CPS Case.” 2005

Dallas Bar Association Juvenile Justice Committee – “It Ain’t Over ‘Til the Foreman Sings” Trial
Pannel 2004

Advanced Family Law Course - “Defending a CPS Case.” 2004

Texas Criminal Defense Lawyer’s Association Forensic Seminar - “CPS Investigations” 2003.

Texas Criminal Defense Lawyer’s Association Forensic Seminar - “CPS Investigations”, 2001.

Texas Children’s Justice Project’s Continuing Legal Education Program

“Representation in Abuse & Neglect Cases”, September 22, 2000.

Texas Criminal Defense Lawyer’s Association’s 13th Annual Advanced Short Course, “Rusty
Duncan” Seminar, “CPS Investigations” – June 2, 2000.

Tarrant County Criminal Defense Lawyers Continuing Legal Education –

“Defending a Criminal Client in a CPS Investigation” – October 1999.

Guest Television Host of Arlington’s AT&T Cablevision’s Weekly Program: “For the Record” –
Hosted multiple television programs on government affairs - 1998 – 2002.
Multiple Interdisciplinary Child Sexual Abuse Training
Tarrant County College Police Academy – 3 semesters; 1995-1998.

Court Appointed Special Advocate Legal Training – 1995–2001.

Foster Parent Legal Training – “The CPS Court System” – 1995-1999.

Tarrant County Sexual Abuse Advisory Counsel - “The CPS Court System” – May 1998.

Education Seminars for Child Protective Services’ Social Workers – 1995-1999.

Named by “Fort Worth Magazine” - (December 2002) as the top lawyer for CPS cases and for
Adoption cases.

Appointed to the Child Abuse and Neglect Committee for the State Bar of Texas – 2002 – 2005.

Leadership Arlington - Class of 2002-2003; Chairperson of the Government Section.

 TABLE OF CONTENTS
I. Introduction ................................................................................................................................................... 1

II. Sleeping with the enemy .............................................................................................................................. 1

IIII. Structure of Child Protective Services ......................................................................................................... 1

A. Intake Workers ................................................................................................................................... 1
1. Priority 1 Investigations ............................................................................................................. 1
2. Priority 2 Investigations ............................................................................................................. 1
B. Investigators ....................................................................................................................................... 2
1. How they get the case ................................................................................................................ 2
2. Time to complete the investigation ............................................................................................ 2
3. Thorough Investigations ............................................................................................................ 2
4. Elements of a Thorough Investigation ....................................................................................... 2
5. Exception – Anonymous Reports............................................................................................... 2
6. Referral to Law Enforcement..................................................................................................... 2
7. Dispositions of Investigation...................................................................................................... 2
8. Risk Assessment ........................................................................................................................ 2
9. Supervisory Approval ................................................................................................................ 2
a. In cases where there is no post involvement ...................................................................... 2
b. In cases where there is post involvement ........................................................................... 2
10. Mandatory Notices..................................................................................................................... 2
a. To the alleged perpetrator................................................................................................... 2
b. Ruled Out ........................................................................................................................... 2
c. Reason to Believe ............................................................................................................... 2
C. On Going Caseworkers ...................................................................................................................... 2
1. Develop a service plan ................................................................................................................ 3
2. Court Duties ................................................................................................................................ 3
D. Supervisors......................................................................................................................................... 3
E. Program Managers............................................................................................................................. 3
F. Program Directors.............................................................................................................................. 3
G. Background on CPS Workers ............................................................................................................ 3

IV. The Law on Investigation of Child Abuse by CPS ....................................................................................... 3

A. Investigations ..................................................................................................................................... 3
B. Interference with Investigations ......................................................................................................... 3

V. CPS Investigations Usually Conduct the Investigation in this Order ........................................................... 4

A. Preliminary Considerations ................................................................................................................ 4
B. Setting of the Interview ...................................................................................................................... 4
C. Order of the Interview ........................................................................................................................ 4
D. Follow-up ........................................................................................................................................... 4

VI. Defense of an Alleged Perpetrator During the Investigative Stage .............................................................. 4

A. With Advance Notice .......................................................................................................................... 4
B. Representation Letter .......................................................................................................................... 4
C. Make it Difficult for CPS .................................................................................................................... 4
 D. Motions to Investigate......................................................................................................................... 4
E. What to do if the Motion is Granted.................................................................................................... 5
F. Appeal of Order to Investigate............................................................................................................. 5
G. Other Considerations............................................................................................................................ 5

VII. Defense of a Parent During the Post Removal Stage .................................................................................... 5

A. Attend Every Court Hearing .............................................................................................................. 5
B. Meet Your client and Return Calls..................................................................................................... 5
C. Send Discovery................................................................................................................................... 5
D. Depositions......................................................................................................................................... 5
E. Attend Permanency Planning Team Meetings.................................................................................... 5
F. Request your own Hearings ................................................................................................................ 5
G. Motions to Extend the Case ................................................................................................................ 5

VIII. Jury Trials ..................................................................................................................................................... 6

A. Do all of the tactics mentioned above ................................................................................................ 6
B. Motion in Limine................................................................................................................................ 6
C. Voir Dire Considerations.................................................................................................................... 6
D. Motion to Equalize Strikes................................................................................................................. 6
E. The Charge ......................................................................................................................................... 6
F. Request a Jury Shuffle ........................................................................................................................ 6
G. Remember Batson .............................................................................................................................. 6
H. Clean up your client ........................................................................................................................... 6

IX. Final Thought................................................................................................................................................ 6

APPENDICES:
"A" Sample Letter ............................................................................................................................................ 7
"B" Respondent’s Request for Production of Documents................................................................................ 8
"C" Request for Disclosure ........................................................................................................................... 12
"D" Respondent’s First Set of Interrogatories ............................................................................................... 14
"E" CPS’s Intake Protocol ............................................................................................................................ 23
"F" Appeal of Associate Judge's Ruling ....................................................................................................... 29
"G" Time Line of a CPS Case ........................................................................................................................ 31

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Defending the CPS Case – How to Level the Playing Field

DEFENDING THE CPS CASE –

Chapter 261 of the Texas Family Code sets forth the
HOW TO LEVL THE PLAYING law for the investigation of child abuse and neglect.
FIELD
A. Intake workers – receive the telephone calls
from persons reporting abuse or neglect. They
I. INTRODUCTION determine whether or not the nature of abuse or neglect
This article addresses the structure of CPS, the warrants an investigation. To do so the worker looks
Investigative Process, how to defend a parent involved for information indicating that either a child has been
in a CPS case and how a CPS case may affect your abused/neglected and is in danger of further
divorce or custody case. abuse/neglect; or, there is reasonable likelihood that a
child will be abused or neglected in the foreseeable
II. "SLEEPING WITH THE ENEMY" future. If this finding is made, the worker assigns a
CPS has substantial power. They do not need "priority level" to the case.
a search warrant. They can go into a home and remove 1. Priority 1 – Allegations of immediate risk of
a child without a court order. However, they must abuse or neglect that could result in death or serious
obtain a court order on the next business day. T.F.C. harm. 40 Tex. Admin. Code § 700.505(b)(1)
§262.106. Examples: a child has died and other children remain
CPS has legitimacy because they are a the home; failure to thrive; sexual abuse (and is in
governmental agency charged with the task of immediate danger of further abuse); preschooler left
protecting children from neglect and abuse. alone; a child that has sustained a server physical
CPS has the power to make "findings" with injury; a child’s care-giver is extremely intoxicated or
regard to allegations of neglect and abuse. These mentally impaired. Priority 1s must be responded to
findings can affect a parents future rights to parent within 24 hours. 40 Tex. Admin. Code §
their children. This is true even if the child is not 700.505(a)(1).
legally removed from that parent. A negative finding 2. Priority 2 – Allegations of all other forms of
by CPS can effect a Court's decision on granting abuse or neglect. 40 Tex. Admin. Code § 700.505
custody to a particular parent. Not only can a negative (b)2. These must be responded to within 10 days. Tex.
finding, but also an unable to determine finding will Admin. Code §700.505 (a) 2. The intake worker takes
preclude a parent from operating a day care, and down the caller's information and inputs this
working at a day care or school. information into the computer.
CPS investigators are limited by time (30 days) 3. The intake worker also checks the computer,
to complete their investigation. If the case is complex, which contains a central registry to ascertain whether
(the fact situation surrounding the allegation of abuse), or not the alleged perpetrator has been accused of child
then it is more likely that the finding by CPS is either abuse before. Reports of abuse are maintained in the
erroneous or is inadequate. Erroneous or inadequate central registry until the alleged victim turns age 18.
findings will skew the true story for the fact finder and NOTE: CPS only investigates persons accused of
may greatly affect the outcome of the case. abuse or neglect who are responsible for the care,
custody, or welfare of the child.
III. STRUCTURE OF CHILD PROTECTIVE 4. The time-frame mentioned above in which the
SERVICES investigation must start, begins when the intake worker
CPS is profoundly understaffed. This results receives the call/report.
in poor training, inadequate time to address the
workload, and poor moral. A compounding problem is B. Investigators –
their budgetary constraints. 1. How they get the case – They receive the
The Texas Department of Family and referral from the intake worker. They investigate
Protective("TDFPS") is the entity over Child allegations of child abuse.
Protective Services (“CPS”), Adult Protective Services 2. Time to complete the investigation
(“APS”), and Child Care Licensing (“CCL”). Investigators must complete their investigation within
30 days and must have their report completed within
45 days (from the date of assignment). The time

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Defending the CPS Case – How to Level the Playing Field

frame for completions of an investigation is often (unable to investigate).

inadequate. The more complex the fact situation 8. Risk Assessment. At the conclusion of the
surrounding the allegation of abuse or neglect, the investigation, the investigator MUST document
more likely the findings will be inadequate. findings regarding the likelihood of child abuse/neglect
INVESTIGATIONS MAY BE CONDUCTED BY occurring the foreseeable future. This is called a "Risk
TRAINEES AFTER COMPLETING THEIR Assessment." It is a form that has either two options:
TRAINING CLASSES!!!!!!!!!!! "at risk" or "not at risk".
3 Thorough Investigations. 9. Supervisory Approval. The supervisor must
Thorough investigations are mandated if the interview approve the disposition assigned to the case.
with the alleged victim or parent or alleged perpetrator a. In cases where there will be no post
suggests that: abuse or neglect did occur; or, risk is involvement by CPS, the approval must be
indicted; or it is impossible at this point to determine completed within 60 days after case intake.
whether abuse/neglect occurred and/or is likely to b. In cases where post-investigation
occur in the future. services will be provided, the investigation
4. Elements of a thorough Investigation. The must be approved within 5 days.
following are mandatory elements of a thorough 10. Mandatory Notices.
investigation: interview alleged victim; interview at a. CPS must send the parent/alleged
least one of the parents; and interview the alleged perpetrator notice of the disposition of the case.
perpetrator; check abuse/neglect backgrounds on CPS's b. If the case was "Ruled Out," the
computer system; interview other children (usually notice will contain information on how to seal the
siblings) who may have been exposed to abuse/neglect; case and purge the computer records of the referral.
visit the home (neglect cases); and check the criminal This notice must be given within 15 days following the
background of the alleged perpetrator. conclusion of the Investigation. The removal of
5. EXCEPTION Anonymous Reports. When information must occur within 90 days from receipt of
a report of abuse and neglect is made anonymously, a a properly submitted request. During this removal time
preliminary investigation is mandated. Tex. Fam. period, CPS may not release information relating to
Code §261.304. Unless CPS determines that there is this particular false report of abuse/neglect. The
some evidence to corroborate the report of request for removal of information from records must
abuse/neglect, CPS may NOT conduct a thorough occur within 45 days after the mailing date of the
investigation and/or take action against the person notification of the disposition of "Ruled Out."
accused of abuse. Tex. Fam. Code § 261.304(c). To c. If the case was "Reason to Believe, "
corroborate the report of abuse/neglect, the worker the notice will contain information on the right to
must check the abuse and neglect background of every request an administrative review. Please note that the
member of the home AND contact and interview a alleged perpetrator must ask CPS for a "Form 2234".
reliable collateral (teacher/neighbor). CPS will not complete the form for you. CPS does
6. Referral to law enforcement. The not tell the alleged perpetrator about this form.
investigator is required to forward the report of child
abuse to law enforcement. Texas Family Code § C. On-going Case Workers – If the case was
261.105. The District Attorney may inform CPS that it dispositioned as Reason to Believe or if there is risk,
desires notification of reports of child abuse & neglect. on-going workers receive the case from the
Tex. Fam. Code § 261.1055. investigator.
7. Dispositions of Investigation. The 1. Develop a Service Plan. The on-going
investigator meets with her supervisor to assign a worker develops a case service plan for the family and
disposition to the investigation. Dispositions are directs the family to services.
either: 2. Court Duties. The on-going worker attends
a. Reason to Believe – the review hearings and trial and permanency planning
(Substantiated); team meetings.
b. Unable to Determine
(Unsubstantiated); D. Supervisors – Supervise on-going workers
c. Ruled Out (False); or and/or investigators.
d. Family Moved

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Defending the CPS Case – How to Level the Playing Field

E. Program Managers – Oversees supervisors. (e) An interview with a child alleged to be a victim
of physical or sexual abuse shall be audio taped or
F. Program Directors – Usually one in each of videotaped unless the investigating agency finds that
the 5 largest counties; and others are spread out good cause exists for not audio taping or videotaping
through the state. the interview in accordance with the rules of the
agency. Good cause may include, but is not limited to
G. BACKGROUND ON CPS WORKERS: such considerations as the age of the child and the
1. Required to have a college degree (IN nature and seriousness of the allegations under
ANYTHING!); investigation. Nothing in this subsection shall be
2. Required to attend the “Academy” – this is a construed as prohibiting the investigating agency from
three month training on the identification of abuse and audio taping or videotaping an interview of a child on
neglect and investigative procedures; any case for which such audio taping or videotaping is
3. Now they are ready to investigate allegations not required under this subsection. The fact that the
of child abuse, interview child victims, assign a investigating agency failed to audio tape or videotapes
disposition, and refer the case to law enforcement. an interview is admissible at the trial of the offense
4. Turn over is high. Other agencies seek that is the subject of the interview.
qualified persons and pay more.
B. Interference with Investigations.
IV. THE LAW ON INVESTIGATION OF TEXAS FAMILY CODE § 261.303.
CHILD ABUSE BY CPS: (a) A person may not interfere with an
A. Investigations. investigation of a report of abuse or neglect conducted
TEXAS FAMILY CODE § 261.302. by the department or designated agency.
“CONDUCT OF INVESTIGATIONS” (b) If admission to the home, school, or any place
(a) The investigation may include: where the child may be cannot be obtained, then for
(1) a visit to the child’s home, unless the good cause shown the court having family law
alleged abuse or neglect can be confirmed or clearly jurisdiction shall order the parent, the person
ruled out without a home visits; and responsible for the care of the children, or the person
(2) an interview with and examination of the in charge of any place where the child may be to allow
subject child, which may include a medical, entrance for the interview, examination, and
psychological, or psychiatric examination. investigation.
(b) The interview with and examination of the (c) If a parent or person responsible for the
child may: child’s care does not consent to release the child’s
(1) be conducted at any reasonable time and prior medical, psychological, or psychiatric records or
place, including the child’s home or the child’s school; to a medical, psychological or psychiatric examination
(2) include the presence of persons the of the child that is requested by the department or
department or designated agency determines are designated agency, the court having family law
necessary; and jurisdiction shall, for good cause shown, order the
(3) include transporting the child for purposes records to be released or the examination to be made
relating to the interview or investigation. at the times and places designated by the court.
(c) The investigation may include an interview (d) A person, including a medical facility, that
with the child’s parents and an interview with and makes a report under Subchapter B shall release to the
medical, psychological, or psychiatric examination of department or designated agency, as part of the
any child in the home. required report under § 261.103, records that directly
(d) If, before an investigation is completed, the relate to the suspected abuse or neglect without
investigating agency believes that the immediate requiring parental consent or a court order.
removal of a child from the child’s home is necessary
to protect the child from further abuse or neglect, the
investigating agency shall file a petition or take other
action under Chapter 262 to provide for the temporary
care and protection of the child.

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Defending the CPS Case – How to Level the Playing Field

V. CPS INVESTIGATORS A. With advance notice. If you and your client

USUALLY CONDUCT THE have advance notice of CPS’s involvement before CPS
INVESTIGATION IN THE races to the alleged victims school or daycare:
FOLLOWING ORDER: [This is in situations where your client has been
A. Preliminary Considerations contacted by CPS who wants your client and the
1. Review Report/Referral; alleged child victim to come in to “discuss”
2. Contact reporting party; allegations. Sometimes CPS goes to the school or day
3. Contact the family/alleged perpetrator to set care provider without notifying your client].
up an Interview; they do not tell the family the B. Representation letter. Immediately send a
nature of the report/referral; letter to the legal entity in your jurisdiction that
4. Forward report to law enforcement. represents CPS. Cc: The Program Director,
B. Setting of the Interview Supervisor, and Investigator. [See appendix for sample
1. Neutral, not at scene of alleged abuse; letter]. This letter is very important. Many
2. Specific room for interview (usually jurisdictions have local rules that prohibit ANY ex
caseworker’s office); parte communications. This way you receive advanced
3. Select tools/props. notice of CPS’s plan to file a motion and seek an order
C. Order of the Interview compelling your client’s participation in the
1. Child victim first (video if sexual); parent(s) investigation process.
and alleged perpetrator waits in CPS lobby; C. Make it difficult for CPS. A client not
2. All other siblings, (video if sexual); allowing CPS access to the alleged victim is not a law
3. Non-offending parent (do not reunite with violation. It is contrary to the family code and puts
alleged perpetrator); ask for 3 references; obtain CPS into a tizzy. If your client does not allow access
background information; to the alleged victim, CPS will present the situation to
4. Alleged perpetrator; ask for 3 references; their legal representative (District or County Attorney).
obtain background information. The attorney will then, if circumstances warrant, file a
D. Follow-up Motion to Investigate with the proper court. If you
1. Apprise the family and alleged perpetrator of have sent your representation letter, you should get
the nature of the referral; advance notice of this hearing. NOTE: In CPS’s
2. If warranted, obtain consents for medical and world, advance notice of an Ex Parte may mean they
therapy from family; are presenting the Motion in 15 minutes. This is okay,
3. Protection issues: you can now contact the judge and ask that the Ex
- offender moves out; and Parte wait until you get to court or if CPS moves
- safety plan; or forward without you, you may contact the judge and
- foster or out-of-family care. explain your facts (Ex Parte).
4. Referrals for Follow-up: medical, if needed; Advise your client it is okay to keep their child
and/or therapy. out of school or day care if the child seems “sick” or
5. Interview collaterals (others who may have advise them that it is not a law violation to home-
pertinent information) such as teachers, child care school their children. This way CPS must go through
providers, neighbors, relatives, etc. the court process to obtain access to the child.
6. Contact referrals provided by non-offending D. Motion to Investigate. Pushing CPS into
parent and alleged perpetrator; filing the Motion to Investigate is an ideal way to have
7. Meet with supervisor to assign disposition; complete advance notice of EVERYTHING in the
8. Write up investigation narrative; intake referral, short of the complainant’s name, prior
9. Forward investigation to law enforcement; to your client ever being interviewed by anyone,
10. Forward to alleged perpetrator the disposition including law enforcement. This also allows you
of the report and provide the alleged perpetrator access to the plethora of discovery allowed by the
information on how to appeal the disposition. Texas Rules of Civil Procedure.
E. If the court grants the Motion to Investigate.
VI. DEFENSE OF AN ALLEGED CPS will have a court order, usually with an expiring
PERPETRATOR DURING THE date, that gives them access to the alleged victim and
INVESTIGATIVE STAGE. siblings. Now your client must comply. If the order is

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Defending the CPS Case – How to Level the Playing Field

granted CPS will respond in a variety of ways. If you deposition to enhance testimony, but you can use it to
have advance notice, CPS will probably arrange with impeach the witness.
you a time for your client to bring in the alleged victim 2. police officer;
for an interview. Or, CPS may respond to your 3. child(ren) – take this deposition early;
client’s home armed with the court order and law 4. outcry witness;
enforcement. 5. medical doctor who did the
F. Appeal of Order to Investigate. If the court grants examination – remember Daubert! Set the Daubert
that grants the Motion to Investigate is a Master’s predicate in your deposition so that the State’s expert
Court, you may appeal this decision to the District will fail at trial.
Court. An appeal must filed within three days of the D. Attend Permanency Planning Team
date the Master heard the motion. Tex. Fam. Code § Meetings (“PPT”). Clients of CPS are invited and
201.015. “Notice of Appeal.” The appeal is a encouraged to attend these. PPT Meetings are every 3-
mandatory re-hearing to the District Judge. Next, you 5 months for a child in CPS’s custody. Those in
need to file a Motion for Temporary Restraining Order attendance are: investigator, on-going worker,
to restrain CPS from taking action on the Master’s supervisor, program director, therapist, foster parent,
Recommendation. school teachers, etc. The people at these meetings
G. Other considerations. A person who does not have no clue that they are giving their case away.
provide CPS access to their child or home is NOT They talk and talk and talk, even about how little
interfering with the CPS Investigation system. They Johnny is now saying it was his Uncle Bob, not Daddy
are merely exerting their legal rights. One is incapable Stevey who abused him. You are welcome to attend
of being in contempt without a court order directing PPT’s just send a letter to the DA, Program Director,
that persons’ behavior. etc. requesting notification. Also ask your client to
inform you of these meetings. CPS MUST inform the
VII. DEFENSE OF A PARENT DURING THE client of the meeting, they do not have to inform you.
POST REMOVAL STAGE. E. Request your own hearings. Don't wait for
A. Attend EVERY court hearing; Ask questions CPS to get up off their *** to file a motion. If your
during placement reviews of the caseworker such as client has done everything on their service plan, file a
"What else does my client need to do to have her child Motion to Modify. If there is a suitable relative, file a
returned to her?" "Is there anything else?" Get a Motion to Modify or a Motion for Home-study.
transcript of this review hearing. F. Appeal of Associate Judge's Orders – you
B. Meet your client & Return client's phone may appeal any decision made by an Associate Judge
calls – These clients can be the most annoying. But to the District Court. An appeal must filed within three
remember, their children have been whisked away by days of the date the Master rendered a decision heard
the Government. They are usually naive, and have the motion. Tex. Fam. Code § 201.015. “Notice of
limited education. Thoroughly explain the CPS process Appeal.” The appeal is a mandatory re-hearing to the
with them. If they call you all the time, arrange a District Judge.
specified day on which to call your office. G. Motions to extend case. Either party may
A. Send Discovery (attached). (1) Do this in all request the court to extend the case by six months. In
cases where it looks like the case is going to trial. (2) many jurisdictions, the state presents this motion and
Do this in all cases where CPS is delaying movement. order ex-parte. If this happens, jump up and down and
(3) Do this in cases where the worker/supervisor is cause a scene (unless you agree). File appropriate
being either an idiot or mean. motions with the court requesting that evidence be
C. Depositions – Consider taking depositions: heard on why the case should or should not be
1. Case workers and/or CPS Investigator – extended. Argument is not evidence. You must have
take this deposition VERY early in the case when the real live witnesses.
CPS worker believes everything the child says. The
CPS worker will stretch the truth to make the facts VIII. JURY TRIALS
conform to the allegations. Two years later when you A. Do all of the tactics mentioned above.
are trying your criminal case, the story has changed, B. Motion in Limine. File a Motion in Limine
more people have talked to the child, and the worker’s to keep out the fact that your client exerted all of his
story will change too. The prosecutor cannot use the legal rights as opposed to being obstinate.

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Defending the CPS Case – How to Level the Playing Field

C. Voir Dire Considerations. Utilize the old or (b) is eligible for membership in an
“traffic ticket example” and “Ms. J, how much Indian Tribe and is the biological child of a
evidence would you need to hear to terminate the rights member of an Indian Tribe. ICWA, Title
of the prospective juror to your left?” 25 USC §1901, et. seq.
D. Motion to Equalize Strikes. File a motion to Each tribe has different requirements for
equalize strikes. The Ad item and CPS are usually membership.
aligned. Do this in writing. Raise the motion again
during pre-trial hearings. Most Important: Raise the There is a higher burden of proof in an
Motion on the Record after Voir Dire and before ICWA case. It is beyond a reasonable
exercise of strikes, or else it is waived. doubt. Other strict requirements apply.
E. The Charge. Make sure the charge is not The state must notify the Indian nation
disjunctive. timely. The state must proffer a qualified
F. Request a Jury Shuffle. If requested, the expert at the initial hearing or within 90
Court MUST shuffle the jury. This throws the days of removal. The child must be placed
prosecutors, because they already prepared their pretty with a member or that tribe or another
charts. Indian tribe.
G. Remember Batson Applies. F. Alleged Biological Fathers. Consider
H. Clean your client up. You may have to buy legitimation. File a statement of paternity
your client some clothes. Court's usually don't provide or a counterclaim for paternity
them in CPS Cases. Tell your client to brush their hair, immediately. Failure to do so is an
take a bath and be quiet during the proceeding. Tell independent ground for termination.
them not to leave the court room when the Jury is T.F.C. §161.002. It is not necessary to
present. Tell them not to chew gum or eat. It is a apply the “involuntary grounds” nor is it
shame that I have to include this paragraph. necessary to show “best interest.”
G. Is your client mentally ill or mentally
retarded? Ask the Court to appoint a
IX. SPECIAL CONSIDERATIONS Guardian Ad Litem for your client. You
A. What if the Court appoints one attorney will continue as the Attorney Ad Litem.
to represent both parents? Beg the court Consider raising a Title VII claim
not to do this. It rarely works. Often you “American’s with Disabilities Act” for
get to the week of trial and your client’s failure to provide services to your client.
conflict becomes evident. You must then H. Home Studies. If CPS will not do a home
withdraw and new counsel must be study on a proposed relative or kinship,
appointed to represent each parent. then do a Motion to Require CPS to do the
B. Prisoner Client. study or to request the court pay for an
C. Is the parent a minor? Consider whether independent social worker to study this
or not the minor herself should be in foster proposed placement. If a home study
care. Has there been abuse or neglect of comes back negative don’t give up.
your client? If so, you must report this to Consider filing a Placement Motion or
the CPS hotline. Reporting it to the Motion to Modify. Make CPS explain to
caseworker is not enough. the judge why a 14 year old theft
D. What if one parent is a risk factor and conviction is reason to deny a home study.
the other is not? Consider whether or not I. Motion for Monitored Return / Motion
the parents should separate. File for to Modify Temporary Orders . File this
divorce, in the larger counties, this gets once your client completes all of or most
your case moved out of juvenile court and of her services. Don’t wait for CPS to file
into a Family Court. the motion.
E. Does the Indian Child Welfare Act J. Motion to transfer venue. Make sure
Apply? An Indian child is defined as “any CPS has filed the case in the correct
unmarried person who is under age 18 and county.
is either (a) a member or an Indian Tribe

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Defending the CPS Case – How to Level the Playing Field

K. Drug Test Experts. Please look at In the

Interest of KCP and JDP, 142 S.W.3d 574
(Texarkana 2004), no pet.
L. Client contact with CASA or GAL.
Consider whether or not to allow your
client to have contact outside your
presence with CASA or the GAL.
M. 14 day Show Cause Hearing. ALWAYS
ask for a contested hearing if the medical
evidence is questionable.
N. Services. Advise your client to all of the
services CPS requests. Instruct your client
on how to access other services such as
through Volunteers of America, Parenting
Centers, or Catholic Charities. Make sure
your client gives you the certificates of
completion.
O. Photographs. Provide your client with a
disposable camera to take pictures of
visitations and pictures of their present
living environment (only is it is
acceptable). When it comes time for the
termination hearing, CPS will probably not
have EVER been to your client’s home.

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Defending the CPS Case – How to Level the Playing Field

Appendix "A"
Sample letter to send to CPS attorney
prior to removal of a child

June 1, 2004

Mr. _________________
Assistant District Attorney
Tarrant County District Attorney’s Office
2700 Ben Avenue
Fort Worth, TX 76018

Re: Peter Pervert Investigation

Dear Mr. _________________:

I have been retained by Peter Pervert in reference to a C.P.S. Investigation. Please direct all
inquiries on this matter to my office. It is my understanding that Sally Whohasissues has been assigned to
this investigation. Please advise CPS not to contact my client without my consent. Also, in accordance
with Tarrant County Local Rule 3.30(b), please let this letter serve as my request to be notified of any “ex
parte” or emergency hearings in this matter.

Should you have questions or desire additional information, please do not hesitate to contact me.

Sincerely yours,

Kellye A. Swanda

Cc: Sally Whohasissues, CPS Investigator

Diane QueenBee, CPS Supervisor
Jane Doe, Court Coordinator, 323rd Judicial District Court
Peter Pervert (client)

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Defending the CPS Case – How to Level the Playing Field

Appendix "B"
Request for Production
CAUSE NO. 99-928-X

IN THE INTEREST OF § IN THE 305 DISTRICT COURT

§
_______________ § DALLAS COUNTY, TEXAS
§
A CHILD § SITTING AS A JUVENILE COURT

RESPONDENT'S REQUEST FOR PRODUCTION OF DOCUMENTS

To: The Texas Department of Protective and Regulatory Services, by and through their attorney of
record, __________, Assistant District Attorney, 2600 Lone Star Drive, LB22, Dallas, Texas
75212.

____________________, Respondent, requests that Petitioner, The Texas Department of

Protective and Regulatory Services, produce for inspection and copying the items described below, at the

time and place set out below.

Definitions

“TDFPS” means the Texas Department of Protective and Regulatory Services.

"Relating to" means in whole or in part constituting, containing, concerning, embodying, relating,

analyzing, identifying, stating, referring to, dealing with, or in any way pertaining to.

"Parties" means the Texas Department of Protective and Regulatory Services and

____________________ and the child, subject to this case.

Instructions

All information that is not privileged that is in the possession of Petitioner, his attorney,

investigators, agents, consulting experts, as defined in the Texas Rules of Civil Procedure, employees, or

other representatives of Petitioner is to be divulged.

You must produce any document of which you have possession, custody, or control. Possession,

custody, or control includes constructive possession such that you need not have actual physical

9
Defending the CPS Case – How to Level the Playing Field

possession. As long as you have a superior right to compel production from a third party (including an

agency, authority, or representative), you have possession, custody, or control.

The documents must either be produced as they are kept in the usual course of business or be

organized and labeled to correspond with the categories in the request.

Any and all data or information which is in electronic or magnetic form should be produced in the

following form: reduced to writing.

Documents to Be Produced

The documents set forth in Exhibit A, which include any and all documents, things, and

recordings that constitute, mention, or in any way, directly or indirectly, relate or refer to this request, are

to be produced for inspection, examination, and copying within thirty days following service of this

request at Swanda & Swanda at 901 W. Bardin Rd., Suite 306, Arlington, TX 76017

Respectfully submitted:

Swanda & Swanda, P.C.

Attorneys At Law
901 W. Bardin Rd., Suite 306
Arlington, TX 76017
(817) 465-4664
fax (817) 465-3779
e-mail: [email protected]

By:___________________________
Kellye A. Swanda
State Bar No. 00792864
Attorney for Respondent

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on _________________________.

_____________________________
Kellye A. Swanda

EXHIBIT A
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Defending the CPS Case – How to Level the Playing Field

The entire Texas Department of Protective and Regulatory Services case file on

____________________ and her child, including but not limited to:

1. 2054’s and other payment vouchers as it relates to this case and services received by any
party, collateral, or child in this case.

2. CORRESPONDENCE: between TDFPS and ____________________, between TDFPS

and service providers; between TDFPS and foster parents (de-identified, of course),
between TDFPS and educational facilities/providers (de-identified, of course), between
TDFPS and medical providers; between TDFPS and complainants of referrals (de-
identified, of course).

3. INVESTIGATION FILE: including but not limited to each and every CPS referral,
intake report, CAPS report, photographs taken during investigation, investigation
narratative, risk assessment, safety plan(s), medical evaluations, psychological
evaluations or assessments.

4. PHOTOGRAPHS: produce photocopies of all photographs in TDFPS’s possession

regarding this case.

5. SCHOOL RECORDS: produce copies of all records from the children's Early Childhood
Intervention file. Note it is not a proper objection to state that TDFPS is not the “holder”
of these records. Since TDFPS is the Temporary Managing Conservator of the children,
TDFPS has a superior right to these records. If it is too much of a hardship for TDFPS to
produce these records, then please provide Respondent’s counsel with a release for these
records.

6. MEDICAL RECORDS: produce copies of all medical records and psychological records
in your possession for __________________________.

7. ASSESSEMENTS: produce copies of all assessments on the children including but not
limited to placement assessments, educational, speech, cognitive, psychological,
psychiatric, and medical assessments.

8. PSYCHOLOGICAL EVALUATIONS: produce copies of all psychological or

psychiatric evaluations on ____________________.

4. 6TJ9(CASEION FILE: produce copies of a4( c(es )]T0.7978607 0 TD0.5003 Tc1535469 Twwo

11
Defending the CPS Case – How to Level the Playing Field
12. CRIMINAL HISTORIES and ARREST REPORTS: Produce copies of any criminal
histories (done by TDFPS, not NCIC) and copies of any arrest reports regarding
____________________ or anyone on whom a home study was done or requested.

13. CAPS: Produce CAPS background information and referral history and disposition
information on anyone of whom a home study was done or requested.

14. VIDEO or AUDIO TAPES: Produced any and all video or audio tapes made of the
child or either parent.

15. PLACEMENT FILE: Produce a de-identified copy of all documents relating to the
placement(s) of the children.

16. EXPERTS: Produce all reports of narratives, memos, and notes an any information
obtained by any expert witness or prepared by any expert witness retained by you or on
your behalf who will testify at trial. Produce all expert witness’s curriculum vita /
resume.

17. STATEMENTS: Produce any and all statements made by persons with knowledge of
relevant facts.

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Defending the CPS Case – How to Level the Playing Field

Appendix "C"
Request for Disclosure
CAUSE NO. 99-928-X

IN THE INTEREST OF § IN THE 305 DISTRICT COURT

§
_______________ § DALLAS COUNTY, TEXAS
§
A CHILD § SITTING AS A JUVENILE COURT

REQUEST FOR DISCLOSURE/ RULE 194 REQUEST

To: TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, by and

through its attorney of record, ___________, Assistant District Attorney, 2600 Lone Star Drive,
LB22, Dallas, Texas 75212.

1. State the correct names of the parties to the lawsuit.

2. State the names, addresses, and telephone numbers of any potential parties.

3. State the legal theories and, in general, the factual bases of the claims or defenses of

TDFPS. (TDFPS need not marshal all evidence that may be offered at trial.)

4. State the names, addresses, and telephone numbers of persons having knowledge of

relevant facts, and give a brief statement of each identified person's connection with the case.

5. For any testifying expert -

a. state the expert's name, address, and telephone number;

b. state the subject matter on which the expert will testify;

c. state the general substance of the expert's mental impressions and opinions and a
brief summary of the basis for them, or if the expert is not retained by, employed
by, or otherwise subject to the control of TDFPS, documents reflecting such
information;

d. if the expert is retained by, employed by, or otherwise subject to the control of
TDFPS, produce the originals or copies of the following:

i. all documents, tangible things, reports, models, or data compilations that

have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert's testimony; and

ii. the expert's current resume and bibliography.

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Defending the CPS Case – How to Level the Playing Field
6. Produce the originals or copies of any witness statements described in rule 192.3(h) of the Texas
Rules of Civil Procedure. Rule 192.3(h) provides as follows.

Statements of Persons with Knowledge of Relevant Facts. A party may obtain discovery or the
statement of any person with knowledge of relevant facts - a "witness statement" - regardless of
when the statement was made. A witness statement is (1) a written statement signed or otherwise
adopted or approved in writing by the person making it, or (2) a stenographic , mechanical,
electrical, or other type of recording of a witness's oral statement, or any substantially verbatim
transcription of such a recording. Notes taken during a conversation or interview with a witness
is not a witness statement. Any person may obtain, upon written request, his or her own
statement concerning the lawsuit, which is in the possession, custody or control of any party.

The disclosures must be signed in accordance with Texas Rules of Civil Procedure, Rule
191.3, and delivered to the undersigned attorney.

Pursuant to Rule 194 of the Texas Rules of Civil Procedure, you are requested to disclose
within 30 days of service of this request, the information or materials as set forth above.

Respectfully submitted:

Swanda & Swanda, P.C.

Attorneys At Law
901 W. Bardin Rd., Suite 306
Arlington, TX 76017
(817) 465-4664
fax (817) 465-3779
e-mail: [email protected]

By:___________________________
Kellye A. Swanda
State Bar No. 00792864
Attorney for Respondent

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on _________________________.

_____________________________
Kellye A. Swanda

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Defending the CPS Case – How to Level the Playing Field

Appendix "D"
Interrogatories
CAUSE NO. 99-928-X

IN THE INTEREST OF § IN THE 305 DISTRICT COURT

§
_______________ § DALLAS COUNTY, TEXAS
§
A CHILD § SITTING AS A JUVENILE COURT

RESPONDENTS FIRST SET OF INTERROGATORIES TO PETITIONER

To: TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, by and

through its attorney of record, ___________, Assistant District Attorney, 2600 Lone Star Drive,
LB22, Dallas, Texas 75212.

____________, Respondent mother in the above-entitled and numbered cause, and hereby serves

upon Petitioner, Texas Department of Protective and Regulatory Services (“CPS”) the following First Set

of Interrogatories to Petitioner, pursuant to Texas Rules of Civil Procedure, Rule 197, which, in

compliance with such Rules, are directed to and shall be answered by Petitioner. Petitioner shall serve a

copy of the answers on counsel for Respondent at the address below within thirty (30) days from the date

of receipt of these written interrogatories. You are reminded that under the provisions of the Texas Rules

of Civil Procedure, you are under a duty to reasonably amend your answers and responses if you obtain

information upon the basis of which (a) you know that the answers / responses are incorrect when made,

or (b) you know that the answers / responses, though correct when made, are no longer true and the

circumstances are such that failure to amend your answers is in substance a knowing concealment.
Respectfully submitted:

Swanda & Swanda, P.C.

Attorneys At Law
901 W. Bardin Rd., Suite 306
Arlington, TX 76017
(817) 465-4664
fax (817) 465-3779
e-mail: [email protected]

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Defending the CPS Case – How to Level the Playing Field
By:___________________________
Kellye A. Swanda
State Bar No. 00792864
Attorney for Respondent

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on _________________________.

_____________________________
Kellye A. Swanda

I. DEFINITIONS

The following terms are defined and used in these Interrogatories as follows:

A. “PETITIONER” or “YOU” means and includes the TEXAS DEPARTMENT OF

PROTECTIVE AND REGULATORY SERVICES (“CPS”), in this cause of action, and each of its
affiliates, predecessors, successors, employees, agents representatives, investigators, consultants, and all
persons formerly holding such positions and all persons who have acted or purported to act on behalf of
Petitioner.

B. “RESPONDENT” means ___________________and her agents or representatives and all

persons formerly holding such positions and all persons who have acted or purported to act on behalf of
Respondent.

C. “CHILD” or “CHILDREN” mean _____________________ and _____________,

the subjects of this suit.

D. “PERSON” means any individual, corporation, partnership, joint venture, association,

business, trust, municipality or any other organization or entity.

E. “DOCUMENT,” ‘DOCUMENTS” or “TANGIBLE THINGS” may be used in their

broadest sense and shall include all written, printed, typed, recorded or graphic matter of every kind and
description, both original and non-identical copies, and all attachments and appendices thereto. Without
limiting the foregoing, the terms document, documents, and tangible things shall include all court records
and pleadings, agreements, contracts, deeds, deeds of trust, mortgage instruments, quotations, bids,
communications, correspondence, letters, telegrams, telexes, messages, memorandums, records, reports,
accident reports, medical logs or records, books, summaries, or other records of telephone conversations
of interviews, summaries or other records of telephone conversations of interview, summaries or other
records of negotiations, other summaries, diaries, diary entries, calendars, appointment books, time
records, instructions, work assignments, visitor records, forecasts, statistical data, statistical statements,
financial statements, work sheets, work papers, drafts, graphs, maps, charts, surveys, plats, whether
recorded or unrecorded, instruments filed for records, field records, field notes, abstracts or ground
drawings, renderings, diagrams, tables, accounts, analytical records, consultants’ reports, appraisals,
bulletins, brochures, pamphlets, circulars, trade letters, press releases, notes, notices, marginal notations,
notebooks, telephone bills or records, bills, statements, records of obligation and expenditures, invoices,
lists, journals advertising, recommendations, files, print-outs, compilations, tabulations, purchase orders,
receipts, selling orders, confirmations, checks, canceled checks, letters of credit, envelopes or folders or
similar containers, vouchers, analysis, studies, surveys, transcripts of hearings, transcripts of testimony,
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Defending the CPS Case – How to Level the Playing Field
expense reports, microfilm, microfiche, articles, speeches, tape or disc records, sound recordings, video
recordings, film, tape, photographs, aerial or ground, punch cards, programs, data compilations from
which information can be obtained (including matter used in data processing and other printed, written,
handwritten, typewritten, recorded, stenographic, computer-generated, computer-stored, or electronically
stored matter), however and by whomever produced, identical copies thereof which do not contain any
markings, additions, or deletions different from the original need not be separately produced

F. “IDENTIFY” means with respect to the following:

(1) INDIVIDUALS:

(a) The full name, current home and business address, and home and business telephone
number(s) of each individual; (b) The company, firm or organization with
which such person is affiliated or by whom such person is employed;

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Defending the CPS Case – How to Level the Playing Field

(c) The address and principal place of business of any such entity; and

(d) The person’s position, title or job capacity. All such information shall
include both the present time and the time covered by these
interrogatories to Petitioner.

(2) OTHER ENTITIES (Including corporations, partnerships, joint ventures,

associations, business trusts, municipalities or any other organizations or
entities).

(a) The full name of such entity;

(b) The address of its principal place of business; and

(c) The address of its office or offices in Texas, if different from b. above.

(3) DOCUMENTS:

(a) The date of preparation;

(b) The person who prepared them;

(c) The present location(s) of originals, including identification (as defined

in Sub-Paragraphs 1 and 2 above) of present custodian; and

(d) The substance of each document.

Every document to be so identified may be produced for inspection and copying at the time of
response to these Interrogatories to Petitioner in lieu of such identification.

The above information shall be given in sufficient detail to enable a party or person to whom a
subpoena or Request for Production is directed to identify fully the documents sought to be produced and
to enable counsel to determine that such document, when produced, is, in fact, the document so described.

G. The pronouns “he” and “his” refer to both males and females. “You”, “yours” and like
terms refer to individual as well as other entities.

H. “Relating to” means, when used in connection with Request for Production, all
documents which refer to, relate to, reflect, or in any manner describe the subject matter of the Request.

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Defending the CPS Case – How to Level the Playing Field

II. INSTRUCTIONS

A. If a privilege not to answer is claimed, identify each matter as to which the privilege is
claimed, the nature of the privilege and the legal and factual basis for each such claim.

B. If a refusal to answer an Interrogatory is stated on the grounds of burdensomeness,

identify the number and nature of documents needed to be searched, the location of the documents and the
number of person hours and costs required to conduct the search.

C. Answer each Interrogatory on the basis of the entire knowledge of Petitioner, including
information in the possession of Petitioner, its employees, consultants, representatives, agents and
subsidiaries.

D. If an Interrogatory cannot be answered in full, answer to the extent possible and specify
reasons for inability to answer.

INTERROGATORIES
INTERROGATORY NUMBER 1: Please identify each person who assisted in answering these
Interrogatories, and for each such individual, state specifically the Interrogatory he/she assisted in
answering.

ANSWER:

INTERROGATORY NUMBER 2: Please identify each and every person who has given a statement
to you concerning any matter relevant to this case and provide the date the statement was taken, the
identify of the person taking the statement and all persons or entities who possess the original statement
or a copy of the original.

ANSWER:

INTERROGATORY NUMBER 3: Please state the names, addresses and telephone numbers of all
health care providers who have seen the children the subject of this suit and the parents/parties for
examination, evaluation, diagnosis, or treatment of any physical or mental condition and the reasons for
each appointment, and the date(s) seen.

ANSWER:

INTERROGATORY NUMBER 4: Identify (as the word is defined in these Interrogatories) and
indicate the relation to the case of all caseworkers and supervisors, CPS, foster or placement unit
workers, etc., who have been assigned to this case or have personal knowledge of the case.

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Defending the CPS Case – How to Level the Playing Field

ANSWER:

INTERROGATORY NUMBER 5: State whether or not CPS has a written policy as it relates to §
261.302(e) of the Texas Family Code. If so, what is that policy? Have any audio or video tapes as
required by § 261.302(e) of the Texas Family Code been made on this case?

ANSWER:

INTERROGATORY NUMBER 6: If you have any knowledge, either directly or indirectly, of any
relevant admission against interest, statement, oral or written, made by Respondent_________________,
please state:

a. The substance of the admission, communication or statement;

b. The identity of all persons who heard or read the admission, communication or statement
or who might be in a position to testify concerning the admission or statement;

c. The date of the admission, communication or statement; and

d. The circumstances surrounding the giving of the admission, communication or statement.

ANSWER:

INTERROGATORY NUMBER 7: Do you allege that ______________________ has physically,

emotionally or psychologically abused the child the subject of this suit? If so, state the general factual
basis for the allegation of the abuse, the date(s) it occurred, and whether any treatment was sought.

ANSWER:

INTERROGATORY NUMBER 8: Describe in detail (factual circumstances, giving dates and locale)
each specific event you believe would constitute “Negligent Supervision” or “Neglect” or “Physical
Abuse” or “Sexual Abuse” or “Emotional Abuse” by _(parent)____________________ of child .

ANSWER:

INTERROGATORY NUMBER 9: With reference to your Original Petition in Suit Affecting the
Parent-Child Relationship in which you petition for termination, what actions, if any, would you consider
or would you want Respondent to take to cause you to reconsider your position?
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Defending the CPS Case – How to Level the Playing Field

ANSWER:

INTERROGATORY NUMBER 10: Please state the general factual basis for your decision to seek
termination against Respondent.

ANSWER:

INTERROGATORY NUMBER 11: On what date and why did TDFPS permanacy plan change to
"Termination of Parental Rights."?

ANSWER:

INTERROGATORY NUMBER 12: Describe in detail (factual circumstances, giving dates and
locale) each specific event you believe would constitute “endangerment” by __parent_____________ of
child as defined in Texas Family Code § 161.001(D) and (E).

ANSWER:

INTERROGATORY NUMBER 13: If you will contend at trial that Respondent has failed to comply
with your requests and/or the Court’s orders for attending counseling, classes, treatment or any other
matter related to Respondent, then please describe each such failure, if any.

ANSWER:

INTERROGATORY NUMBER 14: Please state whether or not you or your agency has had any past
adversarial or other type relationship with the Respondent regarding the child the subject of this lawsuit,
or any other child or child not the subject of this lawsuit. If your answer is in the affirmative, please state
the following:

a. the nature and extent of the relationship;

b. the dates involved; and
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Defending the CPS Case – How to Level the Playing Field

c. the disposition, if any.

ANSWER:

INTERROGATORY NUMBER 15: State from whom the child the subject of this suit was removed
and what efforts, if any, you have taken to prevent or eliminate the need for the removal of the child from
that person.

ANSWER:

INTERROGATORY NUMBER 16: State the number of foster parents or other persons who have or
have had custody or possession of the child since her removal by you and the dates of placement in each
facility and/or home.

ANSWER:

INTERROGATORY NUMBER 17: State the names and address of all such persons, other than
foster parents, responsive to the foregoing Interrogatory.

ANSWER:

INTERROGATORY NUMBER 18: State each and every requirement that you have established for
Respondent to meet in order for her to obtain conservatorship, managing and/or possessory
conservatorship of the child. State how these requirements are relevant to Respondent obtaining such
conservatorship.

ANSWER:

INTERROGATORY NUMBER 19: With respect to the preceding Interrogatory, state which of your
requirements Respondent ____________________ has completed and state which requirements she has
failed to complete.

ANSWER:

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Defending the CPS Case – How to Level the Playing Field

INTERROGATORY NUMBER 20: State what services were offered to Respondent

______________________ in order for her to meet your requirements to have her children returned to
her care.

ANSWER:

INTERROGATORY NUMBER 21: With respect to Interrogatories 18, 19 and 20, please state:

(A) When were those services initiated by or arranged by TDFPS?

(B) When did those services actually began?

(C) Whether Respondent ___________________________ cooperated with these services.

ANSWER:

INTERROGATORY NUMBER 22: What, if anything, on Respondent’s Service Plan has not been
completed by _________________________.

ANSWER:

INTERROGATORY NUMBER 23: State your future plans (permanacy plans) for the children.

ANSWER:

INTERROGATORY NUMBER 24: Regarding visitation between Respondent and her child(ren):

(A) How often is it offered?

(B) What visitation has Respondent exercised and missed (dates and time, e.g., 1 hour)?

(C) What visitation has been canceled or postponed as a result of TDFPS or PACE or the
foster home having a conflict?

(D) Who supervised the visitation and who else besides Respondent and her children were
present during the visitation?
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Defending the CPS Case – How to Level the Playing Field

ANSWER:

INTERROGATORY NUMBER 25: If a psychological evaluation was performed on Respondent,

then answer. As a result of the recommendations made by the psychologists, did TDFPS arrange the
recommended services? If so, when?

ANSWER:

INTERROGATORY NUMBER 26: If you or someone from Child Protective Services has forwarded
a copy of the intake or investigation to the District or County Attorney or any law enforcement agency,
please describe what was sent, to whom it was sent, and when it was sent.

ANSWER:

INTERROGATORY NUMBER 27: Identify each person who has observed an indication of sexual
acting out behavior of the child ______________. State the date observed and what was observed.

ANSWER:

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Defending the CPS Case – How to Level the Playing Field

Appendix "E"

INTAKE ASSIGNMENT GUIDELINES

* The numbered intake examples are not all inclusive or exhaustive.

* Ages, time frames and time of day references are approximate rather than exact.

PHYSICAL ABUSE
Situational factors to consider:
* Age of Child
* Degree of Injury
* Location of Injury
* History of abuse
* Presence of Family Violence
* Mental or emotional illness

Almost Always Assigned Rarely Assigned

1. Fracture with explanations inconsistent with 1. Medical condition professionally diagnosed.
injury.
2. Parent/teen conflict not resulting in serious
2. Young child with old healed fractures due to injury.
unexplained injuries.
3. Cultural folk remedies not resulting in serious
3. Recent non-accidental burns. injury.

4. Recent non-accidental, unexplained or 4. Mongolian spots reliably corroborated.

inconsistent bruises or injuries.
5. Teenagers with old scars from past abuse but
5. Drug babies when mother and child test expressing no fear of recurrence.
positive and/or child has symptoms of withdrawal.
6. Children aged 7 years old and over with minor
6. Infant diagnosed with Fetal Alcohol injuries to non-vital bodily areas as a result of over-
Syndrome/effect. discipline.

7. Pre-school/young child given alcohol/drugs with 7. Children aged 7 years and over who is afraid of
observable effects. going home with no substantial history of PHAB or
current injures, bruises or scars.
8. Hair pulling resulting in bald spots.

9. Parent or caretaker bites child resulting in

serious injury.

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Defending the CPS Case – How to Level the Playing Field
10. Confined or locked in area.

11. Tied or chained up.

12. Presence of scars indicating serious abuse

incidents not previously investigated and current
risk factors are present.

13. Parent demonstrates a lack of control that

results in behaviors which place the child at risk of
substantial harm; i.e., throwing child across room,
throwing objects at child, striking others when
child is likely to become the target, etc.

MEDICAL NEGLECT
Situational Factors to Consider:
* Age of child
* Child's ability to care for self
* Impact of non-treatment
* Severity of condition
* Knowledge of parent about source and type of treatment needed
* Statement of need from medical professional

Almost Always Assigned Rarely Assigned

1. Critical negative consequences to missed 1. No blood transfusions due to religious beliefs
medical/counseling appointments but hospital agrees to provide treatment.

2. Parents not learning what to do with high-risk 2. Drug prescribed for ADD/ADHD, parents
newborn requiring special care. refuse to administer.

3. Child is suicidal, clinical professional has made 3. Lack of immunizations.

parents aware, and parents have demonstrated that
they will not respond appropriately. 4. Lack of medical treatment does not pose a
substantial risk of serious harm; including illness,
4. Lack of medical treatment that poses a optical or dental needs.
substantial risk of serious harm; including illness,
optical or dental needs. 5. Developmental delays.

6. Sending child for visit without medications.

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Defending the CPS Case – How to Level the Playing Field

SEXUAL ABUSE
Situational Factors to Consider:
* Date of last incident
* Age of children
* Parent with history of sexual victimization
* AP with history of sexual abuse
* AP's access to child
* Presence of protecting factor
* Child makes an outcry

Almost Always Assigned Rarely Assigned

1. Child, aged 11 or younger, with any sexually 1. Masturbation.
transmitted disease or is pregnant.
2. Child "smells like sex."
2. Child, aged 9 or younger, exhibiting
inappropriate sexually acting out behavior 3. Parent of child walking around house nude or
including, but not limited to attempts to engage bathing with child or sleeping with the child.
others in oral/anal sex acts, insertion of objects in
vagina or rectum. 4. Child, aged 9 years or older made to keep the
bathroom door open.
3. Child of any age is alleged to have been
sexually abused or sexually exploited within a year. 5. Young child complaining of pain during
AP still has access. urination that has not been checked for a bladder
infection.
4. Failure of parent to make reasonable efforts to
prevent a child aged 13 or younger from having 6. Sexual abuse referral with only behavioral
sexual relationships (even if alleged to be indicators (i.e., runaways, dropping grades, etc.)
consensual). AND child is verbal and has made no outcry and
child's sexual behavior is age appropriate.

7. Sexual abuse referral, except from medical staff,

where the vaginal opening is "too large" anal or
vaginal irritation. And child has made no outcry
and there is no substantiating evidence from
laboratory report.

8. Dr. or medical staff makes referral that parent

has brought child in for SXAB exam. Dr. found no
medical or other evidence. Child has made no
outcry, but reporter is fulfilling statutory obligation
to report.

9. Sexual exploration is alleged between children

who are less than two years apart and no violence
or intimidation is alleged.

10. Parent has made reasonable efforts to prevent

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Defending the CPS Case – How to Level the Playing Field
child from having sexual relationship but child
continues to have sex anyway (i.e., 13 year old with
15 year old boyfriend, despite parents efforts to
prevent it.)

11. A child 12 years or older is pregnant.

NEGLECTFUL SUPERVISION
Situational Factors to Consider
* Age of child
* Maturity of child
* Length of time left alone
* Overall safety of surrounding
* Child's knowledge of parent's whereabouts
* Child's ability to respond to a crisis
* Number of children left alone
* Accessibility to other responsible adults
* Child's emotional state
* Behavior, activity child engages in while unsupervised
* Arrangements parents have made to ensure child's safety during parental absence
* Child has a mental, physical, or medical disability
* Frequency of parent's inattention

Almost Always Assigned Rarely Assigned

1. Parent knows child is at risk of abuse and 1. Young children walking home from school
continues to allow access. across busy streets.

2. A child aged 5 or younger, left alone. 2. A child is kept out of school to baby sit.

3. A child, aged 5 or younger, left with caretaker 3. Latchkey children, aged 6 or older, left alone
who is mentally or physically unable to protect. after school.

4. A child, aged 9 or younger left to baby sit 4. A child, aged 10 or older, left alone or out
children aged 5 and younger. "running the streets" after 10 PM.

5. A child, aged 9 or younger left alone or running 5. A child, aged 6 or older, is sick and home alone
the streets after 10 PM. during school.

6. A child, aged 13 or younger, is drinking or using 6. A child, aged 10 or older, using drugs or
drugs with parental approval or encouragement. alcohol.

7. Parents or caretakers leaving a child aged 15 or 7. Children committing delinquent acts.

younger to live without any adult supervision.
8. A child is at school or day care and parent
8. A parent or caretaker who is using a substance cannot be reached.
which may result in an inability to provide
supervision for a child aged 5 or younger. 9. A child, aged 15 or older, left to live without
any adult supervision.
9. Risk of SXAB for substantial / credible reason

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Defending the CPS Case – How to Level the Playing Field
(e.g., parent exposes child to a know sexual 10. Young children playing unsupervised in the
abuser). yard or street where caretaker is actually on the
property.

11. Situations related to children riding without

restraints or in the back of a pick-up truck.

PHYSICAL NEGLECT
Situational Factors to Consider:
* Time of year
* Weather
* Age of child
* Resources available to family
* Effects on child
* History with CPS
* Child's health
* Mental or emotional functioning of parent/child

Almost Always Assigned Rarely Assigned

1. Household with bug or rodent infestation to the 1. Routine lice infestations.
point a child 6 or younger is impacted (i.e., rat bites
on child). 2. Dirty cluttered house with no apparent impact
on child.
2. Significant weight loss indicting
malnourishment (unrelated to a medical condition). 3. Street beggars with no apparent danger to child.

3. Child is not receiving adequate food which 4. Limited or no operating utilities.

appears to be leading to malnourishment.
5. Presence of allegedly dangerous animals, no
4. Non-organic failure to thrive. history of injury.

5. Home presents a health or safety hazard that 6. Educational neglect.

endangers a child age 6 or younger (i.e., broken
glass, exposed wire, feces, etc.). 7. Parents selling or using drugs.

8. Children begging for food.

9. Children are inappropriately fed or poorly

clothed, and there is no obvious impairment of
functioning.

10. Family living in cars, tents, etc.

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Defending the CPS Case – How to Level the Playing Field

EMOTIONAL ABUSE
Situational Factors to Consider:
* Rarely occurs in isolation, usually combined with other allegations.
* Statement of impact from medical or clinical professional.
* Behavior of parent/caretaker
* Specificity of information provided.

Almost Always Assigned Rarely Assigned

1. Parental behaviors causes measurable and severe 1. Name calling by the caretaker.
detrimental effects on the child including isolated
child (not allowed to eat/live /interact with rest of 2. Parent/Adolescent conflict
family) and scapegoated child (treated very
differently form other children in the household). 3. Allegations of parental insensitivity to school
aged child emotional needs that have not required
professional assessment.

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Defending the CPS Case – How to Level the Playing Field

Appendix "F"
Appeal of Associate Judge's Ruling
CAUSE NO. 99-928-X

IN THE INTEREST OF § IN THE 305 DISTRICT

COURT
§
_______________ § DALLAS COUNTY, TEXAS
§
A CHILD § SITTING AS A JUVENILE
COURT

NOTICE OF APPEAL FROM THE ASSOCIATE JUDGE'S HEARING

This Notice of Appeal from the Associate Judge's Hearing is filed by _______________,
Respondent herein.

1. A hearing was held before Associate Judge _________________ on

____________________, 2004.

2. This appeal is timely filed.

3. The Orders of the Associate Judge are not in the best interest of the child.

4. ___________________ specifically objects to the findings and conclusions of the

Associate Judge as follows:

a. Objection to the finding an conclusion that

________________________________________________________________________
_________ ____________________________________________________.

b. Objection to the finding an conclusion that

________________________________________________________________________
_________ ____________________________________________________.

5. ___________________________ prays that this Court set this matter on the docket for
hearing.

Respectfully submitted:

Swanda & Swanda, P.C.

Attorneys At Law
901 W. Bardin Rd., Suite 306
Arlington, TX 76017
(817) 465-4664
fax (817) 465-3779

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Order Setting Hearing

IT IS ORDRED that a hearing on the Appeal of the Associate Judge's Hearing be set for

_____________ a.m. / p.m. on _______________________, 2004.

_________________________________________
JUDGE PRESIDING

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on _________________________.

_____________________________________________
Kellye A. Swanda

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Defending the CPS Case – How to Level the Playing Field

APPENDIX "G"

Time-Line in a CPS Case

First Court appearance – Emergency hearings are held within 24 hours. It may be two days if the removal
took place on a weekend or a holiday.

Show Cause Hearing – by Day 14, may be extended 14 additional days.

First Permanency Planning Team Meeting – by Day 45

Status Hearing – Day 60

Family Plan of Service implementation – by Day 60

Second Permanency Planning Team Meeting – Month 5

First Permanency Hearing – Month 6

Second Permanency Hearing – Month 9

(Six-extension is requested here)

Final Hearing – Month 12 (365 days from removal date)

If extension is granted, the final hearing can take place anytime up through Month 18.

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Defending the CPS Case – How to Level the Playing Field

APPENDIX "H"

Motion in Liminie
CAUSE NO. 99-928-X

IN THE INTEREST OF § IN THE 305 DISTRICT COURT

§
_______________ § DALLAS COUNTY, TEXAS
§
A CHILD § SITTING AS A JUVENILE COURT

RESPONDENT'S MOTION IN LIMINIE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, __________________, Respondent and moves this Court for an Order in

Liminie, restricting opposing counsel, guardian ad litem, counsel for other respondents and witnesses

called on behalf of opposing counsel, guardian ad litem, or counsel for other respondents from mention

of, allusion to, or suggestion of certain matters in the presence or hearing of jurors or prospective jurors,

and in support thereof would respectfully show the Court the following:

I.

The matters described in Paragraph III below are not admissible in evidence for any purpose and

have no bearing on the issues or the rights of the parties in this case.

II.

Permitting interrogation of witnesses, comments to jurors or prospective jurors, or offers or

suggestions of evidence concerning any of these matters would prejudice the jury, and sustaining

objections to such questions, statements, or evidence will not prevent prejudice but will reinforce the

development of questionable defense.

III.

The matters of information made the subject of this motion are as follows:
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Defending the CPS Case – How to Level the Playing Field
a. Any comment, argument or speculation with regard to any criminal offense which

_______________ is alleged to have committed which did not result or has not resulted

in a final conviction.

b. Any comment, argument or speculation with regard to any criminal offense which

_____________ was charged and convicted and was alleged to have occurred more than

ten years prior to the trial of this case.

c. Any comment, argument or speculation with regard to any CPS investigation that did not

result in a “Reason to believe” finding.

d. Any testimony, comment, argument or speculation regarding the testimony of any

“expert witness” whose qualifications have been challenged and have been found by the

Court to be insufficient to permit said witness to testify as an expert.

e. Any comment or argument regarding ________________ having filed this motion in

liminie or regarding any ruling by the Court in response to this motion. Such references

are inherently prejudicial in that they suggest or imply the movant has sought to exclude

proof of matters damaging Respondent’s case.

IV.

Movant further requests that, if opposing counsel, guardian ad litem, or counsel for other

respondents, proposes a theory of admissibility concerning the matters set out in Paragraph III, the Court

order that opposing counsel, guardian ad litem, or counsel for other respondents first request a ruling from

the Court outside the presence and hearing of all prospective jurors and jurors ultimately selected in this

case.

WHEREFORE, PREMISES CONSIDERED, _____________________, Respondent requests

that this Court order that counsel for TDFPS, the Guardian Ad Litem, and counsel for all other

respondents, and any and all witnesses called on their behalf be instructed to refrain from any mention or

suggestion or interrogation, directly or indirectly, in any manner whatsoever, including any offer of

documentary evidence, regarding any of the matters set forth in this motion.

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Defending the CPS Case – How to Level the Playing Field

Respectfully submitted:

Swanda & Swanda, P.C.

Attorneys At Law
901 W. Bardin Rd., Suite 306
Arlington, TX 76017
(817) 465-4664
fax (817) 465-3779

By:___________________________
Kellye A. Swanda
State Bar No. 00792864
Attorney for Respondent

Order Setting Hearing

IT IS ORDRED that a hearing on the Appeal of the Associate Judge's Hearing be set for

_____________ a.m. / p.m. on _______________________, 2004.

_________________________________________
JUDGE PRESIDING

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on _________________________.

_____________________________________________
Kellye A. Swanda

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Defending the CPS Case – How to Level the Playing Field

APPENDIX "H”

Motion to Modify
CAUSE NO. 99-928-X

IN THE INTEREST OF § IN THE 305 DISTRICT COURT

§
_______________ § DALLAS COUNTY, TEXAS
§
A CHILD § SITTING AS A JUVENILE COURT

MOTION TO MODIFY TEMPORARY ORDERS

This Motion to Modify Temporary Orders is brought jointly by Respondent,

_________________________________who shows in support:

The present orders relating to possession of and access to the child have become

unworkable and are no longer in the best interest of the child because

___________________has significantly completed recommendations and requirements of the

TEXAS DEPARTMENT OF FAMILY & PROTECTIVE SERVICES (TDFPS), Temporary

Managing Conservator. has undergone a psychological evaluation

that indicates she is not a threat to the well-being of the child and is capable of a monitored

return or in the alternative having unsupervised visits with her child.

request the Court to issue Modify the current Temporary

Order and name Respondent ___________________ as the Temporary Joint Managing

Conservator of the child along with TDFPS.

In the alternative, request the Court to issue Temporary

Orders permitting unsupervised visitation with the child the subject of

this suit in accordance with the Standard Possession Order set forth in the Family Code or issue

a visitation schedule that the Court deems is in the best interest of the child.

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Defending the CPS Case – How to Level the Playing Field

Such modification would be in the child’s best interest.

Respectfully submitted:

Swanda & Swanda, P.C.

Attorneys At Law
901 W. Bardin Rd., Suite 306
Arlington, TX 76017
(817) 465-4664
fax (817) 465-3779

By:___________________________
Kellye A. Swanda
State Bar No. 00792864
Attorney for Respondent

Order Setting Hearing

IT IS ORDRED that a hearing on the Appeal of the Associate Judge's Hearing be set for

_____________ a.m. / p.m. on _______________________, 2004.

_________________________________________
JUDGE PRESIDING

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on _________________________.

_____________________________________________
Kellye A. Swanda

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