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Parental Alienation, the Courts, and Emotional Distress

September 12, 2020January 5, 2021 14thdaymom

What is Parental Alienation?

The intentional alienation of a child’s affections with his or her parent without cause.

The tactics used after methodical and calculated acts of child abuse which can result in severe consequences. The alienated child an targeted patterns can suffer irrepairable harm.

Even if the child and the targeted parent once had a close, loving relationship before the alienation began, in severe cases, they can lose any existence of a relationship as the direct result of the alienation.

The “alienator” is not always a parent, it can be anyone in the child’s life that has the control and opportunity to influence the child.

The alienation also oftentimes extends to the child’s friends and extended family members.

While family courts recognize that parental alienation happens, (especially in high conflict divorces with child custody disputes), allegations of domestic violence can create an atmosphere of improper justification for the tactics used in alienation.

Daniel G. Saunders, Ph.D., Kathleen C. Faller, Ph.D. and Richard M. Tolman, Ph.D. or the University of Michigan, School of Social Work, submitted a research report to the U.S. Department of Justice which analyzed parental alienation in the family court system.

In their findings, it was concluded that the Judges, private attorneys, and custody evaluators were more likely than domestic violence workers and legal aid attorneys to believe that mothers make false allegations of abuse. This position creates a difficulty for a battered spouse to protect themselves and the child from abuse as they are labeled as an alienator.

This can have catastrophic consequences when “parental alienation syndrome” is brought up by the abuser to counter an allegations of domestic violence. The. battered spouse can even lose custody to their abuser and be erased from the childs life..

In a 2002 case in Nassau County, a trial court found that in cases where parental alienation is alleged, “the court has the duty to become aware of and seek out every bit of relevant evidence and advice on the custody issues before it”, which included a forensic evaluation. (Zafran v. Zafran, 740 NYS2d 596).

This can be achieved by a forensic custody evaluation, home study, or in cases where conflicting testimony is present, the court has the authority to use is an “in camera” interview (also called a Lincoln hearing) with the child.

The judge will interview the child in the absence of the parents and their attorneys, having only the child’s attorney present. The judge has the discretion to do an “in camera”, usually making this determination by assessing several factors. These factors include the facts of the case, the age and maturity of the child and the need to protect the child from the adversarial proceeding. The judge will conduct an “in camera” if they hear conflicting testimony or if one of the attorneys make the request. A lot of judges are partial to getting children directly involved in child custody or visitation cases and will therefore only conduct an “in camera” when it is absolutely necessary.

Parental Alienation as Form of Emotional Distress Tort Claim

Divorce lawyers see quite a bit of parental alienation in its various forms.

Some cases are severe, like the Tsimhoni case from Waterford & Clarkston, while other cases are mild.

An interesting case, Fukimaki v Ichikawa, decided in the Washtenaw County Circuit Court makes the Tsimhoni case look like a pro confesso divorce proceeding.

One particularly unusual aspect of the case is that the ex-husband filed a brand new case against his ex-wife in the court of general jurisdiction more than a decade after his divorce was completed in the family court.

The basis of the new case: tort claims for “alienation of parental affection” and “intentional infliction of emotional distress”.

The trial court judge dismissed the action on the grounds Michigan does not recognize the parental alienation tort claim and that the emotional distress claim was time-barred.

Not so fast, says the Michigan Court of Appeals. While the appellate court agreed that there is no cause of action for parental alienation, it held that the intentional infliction of emotional distress claim did not accrue until the mother began preventing parenting time with the father.

The trial court selected a much earlier date to begin running the “statute of limitations” clock: the date mother was awarded sole physical and legal custody of the child.

To establish the intentional infliction of emotional distress, the appellate court held that plaintiff must demonstrate that a defendant’s conduct was, “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”

In sum, the courts have held that to be actionable, the defendant’s conduct must be so severe and shocking that a community member is compelled to shout, “Outrageous!”

In his complaint, father sets forth the following allegations:

Mother was twice held in contempt of the family court for disallowing father’s parenting time with the child;
Mother arranged for the child’s teacher to keep the child while she served a stint in the county jail following her second contempt of court ruling;
Mother sent father letters promising that she was committed and determined to completely destroy father’s relationship with the child;
Mother denied father parenting time for 22 consecutive weeks, and
Mother conspired with the child’s school to exclude father from all school-related events.

Based on these facts, if proven by a preponderance of the evidence, would constitute “Outrageous!” acts of conduct.

The case now goes back to the Washtenaw County Circuit Court where this father gets the opportunity to establish the elements of an intentional infliction of emotion distress claim; not an easy thing to do.

Father will have to prove extreme and outrageous conduct that is intentionally designed to cause severe emotional distress.

Although rare, torts can be filed against one’s spouse or former spouse, just like any other named defendant.

Recognizing Parental Alienation

Parental Alienation can be difficult to detect, largely because it may not be intentional. Yet whether the alienating parent intends to disrupt the relationship between the targeted parent and the child, the damage is the same.

In extreme situations, the alienating parent may relocate the child without the targeted parent’s knowledge or permission. Generally, alienating parents feel they are doing the right thing.Fortunately, courts have jurisdiction over most cases; the relocating parent must obtain leave from the court to move out-of-state or more than 100-miles from the child’s established custodial environment.

Sources:

Clarkston Legal

Parental Alienation Awareness

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Obsessed Alienation – Severe Parental Alienation in Custody Cases

May 15, 2018 14thdaymom

“I love my children. If the court can’t protect them from their abusive father, I will. Even though he’s never abused the children, I know it’s a matter of time. The children are frightened of their father. If they don’t want to see him, I’m not going to force them. They are old enough to make up their own minds.”

The obsessed alienator is a parent, or sometimes a grandparent, with a cause:

to align the children to his or her side and together, with the children, and a campaign to destroy their relationship with the targeted parent.

For the campaign to work, the obsessed alienator enmeshes the children’s personalities and beliefs into their own. This is a process that takes time but one that the children, especially the young, are completely helpless to see and combat. It usually begins well before the divorce is final.

The obsessed parent is angry, bitter or feels betrayed by the other parent. The initial reasons for the bitterness may actually be justified. They could have been verbally and physical abused, raped, betrayed by an affair, or financially cheated.

The problem occurs when the feelings won’t heal but instead become more intense because of being forced to continue the relationship with a person they despise because of their common parenthood. Just having to see or talk to the other parent is a reminder of the past and triggers the hate. They are trapped with nowhere to go and heal.

The characteristics of obsessed alienation are as follows

They are obsessed with destroying the children’s relationship with the targeted parent

They having succeeded in enmeshing the childrens’ personalities and beliefs about the other parent with their own.

The children will parrot the obsessed alienator rather than express their own feelings from personal experience with the other parent.

The targeted parent and often the children cannot tell you the reasons for their feelings.

Their beliefs sometimes becoming delusional and irrational. No one, especially the court, can convince obsessed alienators that they are wrong. Anyone who tries is the enemy.

They will often seek support from family members, quasi-political groups or friends that will share in their beliefs that they are victimized by the other parent and the system.
The battle becomes “us against them.” The obsessed alienator’s supporters are often seen at the court hearings even though they haven’t been subpoenaed.

They have an unquenchable anger because they believe that the targeted parent has victimized them and whatever they do to protect the children is justified.

They have a desire for the court to punish the other parent with court orders that would interfere or block the targeted parent from seeing the children. This confirms in the obsessed alienator’s mind that he or she was right all the time.

The court’s authority does not intimidate them.

The obsessed alienator believes in a higher cause, protecting the children at all cost.

The obsessed alienator will probably not want to read what is on these pages because the content just makes them angrier.

There are no effective treatments for either the obsessed alienator or the children.

The courts and mental health professionals are helpless.

The only hope for these children is early identification of the symptoms and prevention. After the alienation is entrenched and the children become “true believers” in the parent’s cause, the children are lost to the other parent for years to come.

We realize this is a sad statement, but we have yet to find an effective intervention, by anyone, including the courts that can rehabilitate the alienating parent and child.

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More on Parental Alienation

Divorce is one of life’s most painful passages. It is painful for the spouse who wants it, painful for the spouse who feels rejected, and painful for the children.

We can understand and empathize with the spouse who feels wronged and wants revenge, or the spouse who is overwhelmed with anxiety at the thought of losing the children, or the spouse who prefers to forget that the marriage ever was.

But using the children to get revenge, to cope with anxiety, to erase the past, is unacceptable.

Parents must hold themselves to a higher standard.

Parent/child relationships are particularly vulnerable when children are first informed of the impending separation, or when one parent actually leaves the home.

If your spouse manipulates the children to blame you for the divorce, or to believe you have abandoned them, affection can dissolve overnight as their distress and hurt feelings are channeled into hatred.

The risk becomes multiplied if, for any reason, you have no communication or contact with the children after you leave the home. This keeps you from reassuring the children of your love and helping them understand that they do not have to choose between their parents.

A child who feels caught between two homes may feel that the solution to the conflict is to declare a clear allegiance to one household. This motive can result in alienation from either parent.

A child who is anxious or angry about the remarriage may channel these feelings into unwarranted hatred of the remarried parent and stepparent. Or the child’s alienation may express the disappointment of reconciliation wishes that have been dashed by the remarriage.

Regardless of the child’s underlying motivation, if the favored parent welcomes the child’s allegiance and fails to actively promote the child’s affection for the other parent, the child may cling to a maladaptive solution.

The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.

enablers

PAS is more than brainwashing or programming, because the child has to actually participate in the denigrating of the alienated parent. This is done in primarily the following eight ways:

1. The child denigrates the alienated parent with foul language and severe oppositional behavior.

2. The child offers weak, absurd, or frivolous reasons for his or her anger.

3. The child is sure of him or herself and doesn’tdemonstrate ambivalence, i.e. love and hate for thealienated parent, only hate.

4. The child exhorts that he or she alone came up with ideas of denigration. The “independent-thinker”phenomenon is where the child asserts that no one told him to do this.

5. The child supports and feels a need to protect the alienating parent.

6. The child does not demonstrate guilt over cruelty towards the alienated parent.

7. The child uses borrowed scenarios, or vividlydescribes situations that he or she could not haveexperienced.

8. Animosity is spread to also include the friends and/or extended family of the alienated parent.

In severe cases of parent alienation, the child is utterly brainwashed against the alienated parent.

The alienator can truthfully say that the child doesn’t want to spend any time with the other parent, even though he or she has told the child that he has to, it is a court order, etc.

The alienator typically responds, “There isn’t anything that I can do about it. I’m not telling the child that he can’t.

Alienation advances when the alienating parent urdses the child as a personal therapist. The child is told about every miserable experience and negative feeling about the alienated parent with great specificity.

The child, who is already enmeshed with the parent because his or her identity is still undefined, easily absorbs the parent’s negativity. They become aligned with this parent and feel that they need to be the protector of the alienating parent.

Parental alienation can be mild and temporary or extreme and ongoing. Most researchers believe that any alienation of a child against (the child’s) other parent is harmful to the child and to the target parent.

Extreme, obsessive, and ongoing parental alienation can cause terrible psychological damage to children extending well into adulthood.

Parental Alienation focuses on the alienating parents behavior as opposed to the alienated parent’s and alienated childrens’ conditions. This definition is different from Parental Alienation Syndrome as originally coined by Dr. Richard Gardner in 1987:

“a disturbance in which children are preoccupied with deprecation and criticism of a parent-denigration that is unjustified and/or exaggerated.”

Parental Alienation Syndrome symptoms describe the child’s behaviours and attitude towards the targeted parent after the child has been effectively programmed and severely alienated from the targeted parent.

Parental alienation, on the other hand, describes the alienating parent’s or parents’ conduct which induces parental alienation syndrome in children. Parental alienation is a form of relational aggression by one parent against the other parent using their common children.

The process can become cyclic with each parent attempting to alienate the children from the other. There is potential for a negative feedback loop and escalation.

At other times an affected parent may withdraw leaving the children to the alienating parent. Children so alienated often suffer effects similar to those studied in the psychology of torture.

Alienating parents often use grandparents, aunts/uncles, and other elders to alienate their children against the target parent.

In some cases, mental health professionals become unwitting allies in these alienation attempts by backing unfounded allegations of neglect, abuse or mental disease. Courts also often side with the alienating parent against the target parent in legal judgements because parental alienation is so difficult to detect.

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Extreme forms of parental alienation include obsessive brainwashing, character assassination, and the false inducement of fear, shame, and rage in children against the target parent. Moderate forms of parental alienation include loss of self control, flare ups of anger, and nconscious alliances with the children against the target parent. In it’s mildest forms, parental alienation includes occasional mild denigration alternating with a focus on encouraging the children’s relationship with the other parent.

Parental alienation often forces children to choose sides and become allies against the other parent. Children caught in the middle of such conflicts suffer severe losses of love, respect and peace during their formative years.

They also often lose their alienated parent forever.

These consequences and a host of others cause terrible traumas to children as studied in Parental Alienation Syndrome.

Parents so alienated often suffer heartbreaking loss of their children through no fault of their own. In addition, they often face false accusations from their alienated children that they cannot counter with the facts.

Finally, they often find themselves powerless to show that this little-known form of cruel, covert, and cunning aggression is occurring or has occurred.

Often the problem can be cured only by realizing the underlying causes. The reasons are very numerous and varied. These are examples:

Money. The custodial parent may wish to have more than the non-custodial parent is willing or able to provide and the children are leverage pawns.
Retaliation. ‘You wanted a life without us. Now you have it.’

New family member.The mother forms a new romantic relationship and wants her new man to be the father. The non-custodial parent is a hindrance to that new relationship, an unwanted reminder.

New partner’s interference. Mother’s boy-friend or new husband wants to be the man in the child’s life and works to exclude the father.
Jealousy Mother’s empty life is in stark contrast to Father’s recovering one. Mother may not wish the father’s new partner to have the role of ‘rival mother’ – particularly if she is insecure about her own abilities.

Property rights. Mother regards child as her property and is unwilling to share

Social appearance.Mother could never admit that she is not the sole focus of her child’s life.

Depression, Poor health.General negative view on life interpreted by her as being a result of the marital breakup and therefore his fault.

Simple hatred by the mother of the father.

Hostility from the father toward the mother is viewed by her as a risk to the children as well, so she feels that she must ‘protect’ the child by preventing the father from visiting. Mother may have no basis whatsoever for feeling that the father will be hostile to the child.
Possessiveness of the child’s attention and affection. The Mother may have no other close family and be envious of the father’s friends and relatives.

Mother convinces herself that the father is a dangerous human with extreme character flaws to which the child should not be exposed. Mother assumes that activities enjoyed by the father are risky to the child, even though other children may engage in those same activities.

Mother has taken a gender approach and is hostile to all men. This can be particularly true if the mother has limited her own contacts to other single mothers. She may be unable to sustain a wholesome relationship with a man.

Punishment. Mother eliminates visits or shortens contact with the father if the children do not behave. “You have not finished your homework. You cannot go to dinner with your father.” or “You did not obey me about your bedtime. You are grounded here and while you are with your father this weekend.”

Perceived competition with the former spouse. This is particularly true when the non-custodial father spends more on the children than the mother is able to do. Also called “Disneyland Dads”, the father uses his time in high dollar activities while the mother has to make do on free and low cost amusements for them. This also works in reverse with the “competitive” mom – where the non-custodial parent plans an activity, such as a driving vacation and then the custodial mom has to ‘trump’ it by flying the children out of the country on vacation. Neither parent seems to notice that the TWO vacations are far more than the child would have received if in a pre-divorce home and that the child’s values are being distorted on a very subconscious, but permanent level.

Self-esteem. The mother’s interests and activities may be so focused on the children that she has no life if they are not around. She does not wish to, or cannot admit, that they have fun if she is not part.

Fear of abandonment.Mother worries that children may choose the father over her if given the opportunity.

Control. The children may be the only means the parent has of directing the life and emotions of the former spouse.

Reverse control. The mother may have never wanted a man except to sire the child and, once that role is complete, the mother wants him well away from her child. Watch for parents who say ‘MY child’ when talking to the other parent.

Punishment to the Father for forming a new marriage. ‘You were supposed to stay single and grieve for me forever.’

Mistaken belief that the father was actually not interested in the child.Many men are not granted much of a role in baby care, so as the child grows older and the father is ‘learning how to parent’ he may not spend as much time with the child –which may be viewed in retrospect as disinterest. Parenting does not come naturally to everyone and non-custodial parents have less of a chance to practice, with their mistakes being more visible.

Lifestyle conflicts.Mother and father have different choices in cultures, religions, and values and she wants to isolate the children into hers.

Emotional dependence.The mother may feel that the child has only so much capability for affection and wants it all for herself.
Resentment of reminders of failure.The mother may view the dissolved marriage as a failure and wish to avoid all memory of it.

Concealment. The mother may be having difficulties and does not want the children to provide information about her situation to the father.

Theses cases involving Parental Alienating are very frustrating to the targeted parent. Many times the offending parent feels totally justified in their actions. They cannot see the damage they are causing their children.

How can targeted parents in these situations be helped?

Encourage them to keep their heads up, maintain perspective, and contact the right professionals. Open up the line of communication with their children, recognize early warning signs of trouble, and respond appropriately to rude and hateful behavior.

Avoid common errors made by rejected parents through recognition of the problem and quickly obtaining the proper experts, which is crucial in developing a strategy inn a custody case involving Parental Alienation.

If necessary, ask the courts to order an evaluation and most of all to order treatment to reverse the damages caused by such conduct.

Sources:

Parental Alienation Syndrome by Lynn M.Swank,

Dr. Richard A. Warshak. Divorce Poison, Protecting the Parent-Child Bond from a Vindictive Ex, Regan Books, New York,

Gardner, R.A. (1998). The Parental Alienation Syndrome, Second Edition, Cresskill, NJ: Creative Therapeutics, Inc.

Forensic Family Services, Inc.

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A few things you should know about CPS litigation

December 16, 2013 14thdaymom

Because knowledge is power –

This article is from the Texas District and County Attorneys Association at http://www.tdcaa.com/node/2496

By Pamela Kemp Parker

Special Projects Attorney with the Office of General Counsel, Texas Department of Family and Protective Services, Austin

If you are new to CPS cases, the learning curve is steep.

What follows is a roadmap for this important but often disorienting legal terrain.

A growing awareness of the unique legal, social, and psychological issues confronting abused and neglected children and their families in recent decades has produced an army of judges, lawyers, child advocates, and social workers better equipped than ever to handle the unique landscape of child protective services (CPS) litigation. For attorneys new to this area of practice, however, the field’s increasing complexity makes getting up to speed a daunting task.

Any attorney who has been in the trenches knows why the learning curve is so steep: a maze of constantly changing federal and state laws, an alphabet soup of acronyms, a variable cast of parties in every lawsuit, and myriad special laws governing everything from paternity, to Native American children, to interstate and international placements. It isn’t possible to produce an exhaustive compilation of what an attorney representing the Department of Family and Protective Services (DFPS) needs to know in a brief article, but what follows is intended as a roadmap for this important but often disorienting legal terrain, with citations and resources for further research. Although this is only a fraction of what a successful practitioner needs to know, I hope that a close look at the infrastructure underlying this field of practice will make it easier to build the necessary expertise.

The big picture

In 1997 Congress enacted a fundamental truism of child welfare litigation into law: Child safety is paramount in every decision at every juncture.1 Although it almost seems unnecessary to say out loud, the reality of child welfare litigation—the frenetic pace, heavy caseloads, high stakes and limited resources—makes the mantra of child safety a useful touchstone for practitioners.

Another pillar of child welfare policy is the concept that every child needs the most permanent living arrangement possible, as quickly as possible. Ideally, permanency means services that prevent a child from being removed from her home or allow a child to be returned home as quickly as possible. When a child cannot be returned home, however, her need for permanency requires timely decisions to afford her a safe and stable placement. After too many years of children languishing in foster care, both the Texas Legislature and U.S. Congress enacted statutory mandates that compel timely progress and review of cases and, most importantly, impose strict time limits for reaching a final determination in a child welfare case.2

Another significant concept, reflected in both policy and law, is a renewed emphasis on the role of the extended family and friends in resolving abuse and neglect issues.3 This philosophy takes many forms, but the Family Group Conferencing model is a prime example.4 In this model the first effort to aid a family in crisis is to provide a forum for the family to craft its own solution. A facilitator convenes relatives, friends and other members of the community important to the family, but the focus is on encouraging the family to draw on its own strengths and create a uniquely appropriate plan to address child safety.

With the increased focus on families, greater emphasis is also placed on an aggressive search to find any and all possible relatives or family friends who are potential caretakers when it’s determined that a child can no longer be safe in her home. To this end, DFPS provides a parent with a Child Placement Resources Form at the time of removal and must evaluate each person on the form and complete a home study of the most appropriate substitute caregiver before the adversary hearing.5

A hearing for every occasion

The rhythm and progress of a child protection lawsuit is dictated by federal and state laws that require a series of hearings that begin when a child is removed from a family’s home. The following are broad descriptions of the purpose and timing of these standard hearings. For details about the statutory requirements, issues and procedural prerequisites, consult the resources cited below. In addition, the Office of General Counsel for DFPS anticipates releasing the Practice Guide for DFPS Attorneys in the fall of 2008. Attorneys who represent the agency also currently have access to HOTDOCS, a software program with standard pleadings for DFPS litigation.6

Emergency removal. If a child has been removed with no prior court order, the agency must appear in court no later than the next business day (usually this is an ex parte hearing/order) and provide sufficient evidence of “a continuing danger to the physical health or safety of the child if returned to the home or evidence that the child has been sexually abused and is at substantial risk of future sexual abuse.”7

Alternatively, DFPS may seek an ex parte order prior to a removal and in that instance must provide sufficient evidence of “either an immediate danger to the physical health or safety of the child, or that the child has been a victim of neglect or sexual abuse.”8

In addition, in either of these circumstances the agency must also provide sufficient evidence:

• that there is not sufficient time, consistent with the child’s physical health or safety, to hold an adversary hearing;

• that it would be contrary to the child’s welfare to remain in the home; and

• that reasonable efforts were made to prevent or eliminate the need for removal.9

Non-emergency hearing. If there is no urgent need for removal but the child’s safety is at risk if left in the parent’s care, DFPS can seek a court order authorizing removal following a noticed hearing. This type of order requires sufficient evidence to prove:

• that it would be contrary to the child’s welfare to remain in the home; and

• that reasonable efforts were made to prevent or eliminate the need for removal.10

In every removal, the original petition in the Suit Affecting the Parent Child Relationship (SAPCR) is verified by the caseworker’s supporting affidavit, which must detail specific facts about household conditions, medical findings, allegations of sexual abuse or physical abuse, or other circumstances that make removal of a child necessary, as well as the efforts made to obviate the need for a removal.

Adversary hearing. Within 14 days after DFPS takes a child into custody in an ex parte proceeding, the court must revisit the issue of removal and either enter temporary orders or return the child to the family.11 At this hearing, if the court appoints DFPS as the child’s temporary managing conservator, the court must enter temporary orders and find:

• danger to the child’s physical health or safety and that it is contrary to the child’s welfare to remain in the home;

• the urgent need for protection required immediate removal; and

• that despite reasonable efforts to prevent or eliminate the need for removal and to return the child home, there is a substantial risk of continuing danger to the child in the home.12

At this juncture the agency attorney also typically seeks any necessary orders for visitation, child support, paternity testing, psychological testing, drug assessment or testing, physical examinations, discovery, or other orders needed to protect the child, facilitate the child’s return, or find optimum placement for a child.

Status hearing. No later than 60 days after a temporary order is entered, a status hearing must be held.13 Its focus is:

• the contents of the service plan;

• designation of the person authorized to give medical consent for the child;

• the status of diligent search efforts for any missing parents; and

• a warning to parents that unless the parent can offer the child a safe environment, termination of parental rights is an option.14

Permanency hearings. The first permanency hearing must be held no later than 180 days after DFPS is named as temporary conservator.15 Notice is required and all parties must be given a copy of the permanency plan at least 10 days prior to the hearing.16

At the hearing, the court must:

• thoroughly assess all facets of the case;

• return the child to the home if it is safe to do so;

• enter necessary orders to ensure progress toward permanency; and

• set a dismissal date.17

A subsequent permanency hearing must be held within 120 days of the last permanency hearing.18

Final hearing. The driving force that dictates timely resolution of a child welfare case is the requirement that no later than one year after DFPS is named conservator (or at most an additional 180 days later if the court finds that extraordinary circumstances necessitate an extension), the court must either enter a final order or dismiss the lawsuit.19 DFPS may seek termination of parental rights and appointment of DFPS or another caretaker as permanent managing conservator. Although it is sometimes necessary, naming DFPS or another caretaker as a child’s managing conservator without termination of the child’s parental rights is only appropriate if no other, more permanent option is available. Without question, this stage of the litigation requires the most careful preparation, adherence to procedural requirements, and close coordination between DFPS staff and attorneys representing the agency.

Evidence of DFPS’ efforts to locate a missing parent, a parent’s compliance with the service plan, and the child’s adoptability may all be crucial at this juncture. If termination of parental rights is requested, there must be clear and convincing evidence of at least one statutory ground for termination of parental rights and that termination is in the child’s best interests.20

Placement reviews

If the final order names DFPS as managing conservator, the court must review the child’s placement at least every six months until the child ages out of foster care.21

DFPS must submit a placement review report addressing all aspects of the child’s status at least 10 days in advance, and the court must make findings as to the appropriateness of the placement, the efforts made to meet the child’s needs, and any additional services the child needs.22

Who qualifies as a parent?

In child protection litigation, sometimes half the battle is figuring out who is a party to the action. If a child is born to a married woman, her husband is the presumed father and must be named in a suit seeking to restrict or terminate parental rights.23 Similarly, if a man has lived continuously with a child during her first two years of life and has held himself out to be the child’s father, he may also qualify as a presumed father.24

A presumption of paternity can be rebutted only by an adjudication of paternity or a valid denial of paternity filed by a presumed father with a valid acknowledgement by another person.25

If the mother is not married when a child is born (and wasn’t married within 301 days before birth) and no man has been adjudicated to be the father, the legal ramifications of alleged father status become important. Texas maintains a paternity registry, which allows an alleged father to protect his rights by registering; if he fails to do so, he allows a child to be legally freed for adoption without service of process.26

The process of checking the registry and terminating parental rights of a man who fails to register is not difficult, but getting accurate information as to potential fathers, obtaining paternity testing where possible, and handling new information that may not surface until the eve of a final hearing can be tricky. The best strategy is to make every effort to resolve the paternity question as early in the litigation as possible to streamline the litigation and make the best use of limited resources.27

Search and serve

When parental rights are at stake, due process requires that a parent be served with the lawsuit or, at a minimum, the agency must exercise due diligence in an effort to locate a missing parent before a court can authorize substitute service, usually by publication. Generally, DFPS pleads for termination of parental rights in the alternative in the initial petition. This strategy avoids the necessity of serving parties again when and if the decision is made to pursue termination of parental rights. If a default judgment is taken, compliance with the Service-members Civil Relief Act requires proof that a parent is not an active member of the military.28

Acronyms and lingo

Being familiar with the language always makes navigating new terrain much easier. A few key terms include:

Adam Walsh: The federal Adam Walsh Child Protection and Safety Act of 2006, which requires (among other things) that child welfare agencies conduct fingerprint-based FBI checks on all prospective foster and adoptive homes and, for federally funded placements, imposes either a permanent or a five-year bar on placements if a caretaker has a conviction for specified crimes.29

ASFA: The federal Adoption & Safe Families Act of 1997 which amended Title IV-E of the Social Security Act.30

Baby Moses: The tag given to cases involving infants left at a designated facility, which are not treated as abandonment, to promote safe delivery of infants who might otherwise be left in trash bins or similar perilous circumstances. Special procedures regarding confidentiality, notice, and termination of parental rights apply in these cases.31

CAC: Child Advocacy Center, a multi-disciplinary center designed to minimize the trauma on a child by limiting the number of interviews and to promote collaboration between medical, law enforcement, social work, legal, and other child welfare professionals.32

CAPTA: The federal Child Abuse Protection and Treatment Act, most recently reauthorized and amended by the Keeping Children and Families Safe Act of 2003.33

CASA: Court Appointed Special Advocates, volunteer guardians ad litem appointed to advocate for a child in court.34

CCEJ: Court of Continuing and Exclusive Jurisdiction. After the adversary hearing, if another court is the CCEJ as result of a custody case or another CPS suit, the court must transfer the suit to the CCEJ or, if mandatory transfer grounds exist, order the transfer of the suit from the CCEJ, or order the transfer of the case to the court having venue of the suit.35

FBSS: Family Based Safety Services. These are protective services provided to a family before a child is removed from the home. These services are designed to avoid a removal and reduce the likelihood that a child will be abused or neglected.36

IV-D: Title IV-D of the Social Security Act creates the state’s child support enforcement program. Texas receives a substantial federal subsidy for this program. The Child Support Division of the Office of Attorney General (also known as the IV-D state agency) is responsible for the establishment and enforcement of child support.

IV-E: Title IV-E of the Social Security Act, the source of federal foster care and adoption assistance funding and the accompanying restrictions and requirements.37

Family Reunification Services: These are protective services provided after removal to support a family and the child during the child’s transition from living in substitute care to living back in the home.38

Kinship Care: Caretaking by relatives or “fictive kin,” friends of the family that function like relatives.

Order to Participate in Services: A court order to compel a parent or caretaker to participate in services designed to avoid the need to remove a child.39

SWI: Statewide Intake, a centralized DFPS office located in Austin where members of the public or professionals can report child abuse via the telephone or the Internet.

Special circumstances

In some cases, laws applicable to special situations and populations require particularized knowledge to competently resolve a CPS case. If you find yourself in a case with one of these issues, you must get help before you proceed.

For example, if a case involves:

• a child with Native American heritage: Any removal or termination of parental rights of an “Indian child” is subject to the Indian Child Welfare Act.40

• a foreign-born child: If a foreign-born child is in DFPS custody, DFPS must give notice to the foreign consul.41

• an undocumented child: If an undocumented child cannot reunify with her family, the child will probably be eligible for Special Immigrant Juvenile Status, which is an avenue for obtaining Permanent Resident status.42

• a child to be placed outside Texas: If a child will be placed outside of Texas, the Interstate Compact on the Placement of Children may require advance approval from the state where the child will be placed.43

• a child from another state: If Texas does not have “home state” jurisdiction or there is a prior custody determination in another state, consult the Uniform Child Custody Jurisdiction and Enforcement Act to assess to what extent a Texas court can assert jurisdiction beyond temporary emergency jurisdiction.45

Where to get help

Fortunately, there are excellent resources, mentors, checklists and guides available to help the busy practitioner wade through the daunting blend of legal, medical, mental health, financial and educational issues that modern child welfare litigation presents. Using these tools, we can best follow the advice of an early child advocate, Sitting Bull, who urged, “Let us put our minds together and see what kind of life we can build for our children.”46

Texas Department of Family and Protective Services for CPS policy, rules, resources and updates about new initiatives; www.DFPS.state.tx.us.

Administration for Children and Families for Children’s Bureau, with federal law and child welfare policy handbook; www.acf.hhs.gov/programs/cb/.

Texas Lawyers Care for child welfare-related articles, practice guides, expert witness information, and legal research; www.texaslawyerscare.org.

American Bar Association Center on Children and the Law for articles, news, legislative updates and links to many other resources; www.aba.childlaw.org.

National Council of Juvenile & Family Court Judges for technical assistance, training, and research; www.ncjfcj.org.

National Association of Counsel for Children for training, publications, and advocacy; www.nacchildlaw.org. D

Editor’s note: For more information, the author can be contacted at 512/929-6635 or pamela.parker@dfps.state.tx.us.

Endnotes

1 Adoption and Safe Families Act of 1997, P.L.105-89, §102.
2 42 U.S.C. §675 (5)(E) (state must file termination of parental rights for child in foster care for last 15 out of 22 months, or in case of aggravated circumstances, unless exception applies); Tex. Fam. Code §263.401 (dismissal of DFPS suit after one year unless extraordinary circumstances warrant extension of no more than 180 days).
3 42 U.S.C. §671(a)(19) (mandatory preference for adult relative that meets child protection standards over non-related caretaker); Tex. Fam. Code §262.114 (DFPS must evaluate relatives or other potential caregivers identified by parents and perform home study of most appropriate caregiver); Tex. Fam. Code §264.751 (relative and other designated caregiver support program).
4 Tex. Fam. Code §264.2015 (family group conferencing as strategy to promote family preservation and permanency).
5 DFPS Designated Caregiver Form 2625.
6 Contact Chrissy Sanders, Legal Assistant, Office of General Counsel, at 512/438-5606 or chrissy .sanders@dfps.state.tx.us, to request HOTDOCS.
7 Tex. Fam. Code §262.107; §262.104 (a)(5) and (b) (in addition to general danger to physical health or safety, removal authorized based on specific harm caused by a parent or caretaker’s use of controlled substances or by allowing a child to remain on the premises where methamphetamines are manufactured).
8 Tex. Fam. Code §262.102.
9 Tex. Fam. Code §262.102 (a)(2)-(3); §262.107(a)(2)-(3); DFPS can claim federal funding for children who qualify for Title IV-E, but only if a court finds at the time of the removal that it was contrary to child’s welfare to remain in the home and that reasonable efforts were made to prevent or eliminate the need for removal. 42 U.S.C. §671(a)(15)(B); §672(a)(2)(A)(ii).
10 Tex. Fam. Code §262.113.
11 Tex. Fam. Code §262.201(a).
12 Tex. Fam. Code §262.201(b).
13 Tex. Fam. Code §263.201.
14 Tex. Fam. Code §§263.006; 263.202; 266.007.
15 Tex. Fam. Code §263.304.
16 Tex. Fam. Code §263.301.
17 Tex. Fam. Code §263.306.
18 Tex. Fam. Code §263.305.
19 Tex. Fam. Code §263.401 (dismissal after one year; 180 day extension possible).
20 Tex. Fam. Code §161.001(2); Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976) (list of best interest factors).
21 Tex. Fam. Code §263.501.
22 Tex. Fam. Code §263.502-.503.
23 Tex. Fam. Code §160.204(a) (possible permutations that warrant presumed father status include child born during marriage, or within 301 days of a terminated marriage, child born during attempted marriage, or marriage after child’s birth with voluntary assertion of paternity if father takes specific actions)
24 Tex. Fam. Code §160.204(a)(5).
25 Tex. Fam. Code §160.204(b).
26 Tex. Fam. Code §160.402 (paternity registry); §160.404 (termination without notice to alleged father unless established parent-child relationship or man has filed paternity suit).
27 A variety of mechanisms exist for establishing paternity, Tex. Fam. Code Ch. 160, Subch. C. (establishing parent-child relationship); Subch. D. (acknowledgement of paternity) and Subch. G (adjudication of parentage).
28 Servicemembers Civil Relief Act, 50 U.S.C. App. §511 et seq.
29 P.L. 109-248; See also 42 U.S.C. §671(a)(20)(A).
30 P.L. 105-89.
31 Tex. Fam. Code Ch. 262, Subch. D; §263.1015 (no service plan required) and Tex. Fam. Code §161.001(1)(S) (termination ground for abandoned infants).
32 Tex. Fam. Code Chapter 264, Subchapter E.
33 P.L. 108-36.
34 Tex. Fam. Code Ch. 264, Subch. G.
35 Tex. Fam. Code §262.202-.203.
36 40 Tex. Admin. Code §700.702.
37 42 U.S.C. §670 et seq.
38 40 Tex. Admin. Code §700.703.
39 Tex. Fam. Code §264.203.
40 25 U.S.C. §1901 et seq.
41 Vienna Convention on Consular Relations, 21 U.S.T. 77, Article 37.
42 8 U.S.C. §1101(a)(27)(J).
43 Tex. Fam. Code Ch. 162, Subch.B.
44 Tex. Fam. Code §§152.102(7); 152.201(a)(1) (“home state” is state where child lived with a parent or person acting as a parent for at least six months prior to the filing of the SAPCR).
45 Tex. Fam. Code Ch. 152.
46 Sitting Bull, Hunkpapa Sioux, See The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, B.J. Jones (American Bar Association, Family Law Section, 1995), p.1.

Published in The Prosecutor, May-June 2008, Volume 38, No. 3