EP253 CPS Involvement Common Misconceptions with Dannielle Simms

In this recording attorney Mac Pierre-Louis of MacPierreLouis.com and his colleague, family and probate lawyer Dannielle Simms of SimmsLawGroup.com, discuss common misconceptions about Child Protective Services (CPS) involvement. They address various myths, such as CPS giving legal advice, CPS involvement guaranteeing a win in court, giving power of attorney to someone as a sufficient custody arrangement, the impact of CPS findings, and the neutrality of CPS workers. The discussion helps viewers understand the realities of CPS involvement and how it may or may not influence legal proceedings. TRANSCRIPT BELOW.

KEYWORDS

1. CPS involvement
2. Misconceptions
3. Attorney
4. Dannielle Simms
5. Court order
6. Reason to believe
7. Custody
8. Neutrality
9. Litigation
10. Family preservation
11. DFPS
12. Texas
13. Houston
14. Harris
15. Probate
16. Power of Attorney

TRANSCRIPT

0:01 CPS involvement, common misconceptions with Attorney Dannielle Simms, that is our topic for today.

0:09 Welcome to the Lawyers and Mediators International Show and Podcast, where we discuss law and conflict resolution topics to educate both professionals and everyday people.

0:19 Catch regular episodes on YouTube, and any way you get your podcast.

0:23 Just remember, nothing in these episodes constitutes legal advice, so be sure to talk to a lawyer, as cases are fact-dependent independent

0:35 Hi, everyone.

0:36 This is Mac Pierre-Louis, attorney, mediator, arbitrator.

0:38 I work throughout Florida in Texas.

0:41 And I have my colleague Dannielle Simms of the Sims Law Group.

0:45 And she is with me again today to discuss an important topic.

0:48 And that is dealing with CPS. Dannielle, how are you doing?

0:51 I’m doing well.

0:52 How are you?

0:52 Good, good.

0:54 Let me share your screen real quick to remind folks where they can find you so they can check out your website at SimmsLawGroup. com.

1:01 That’s where they will find everything out.

1:03 They need to know about you, what you do.

1:05 And but go ahead and give us the 15 seconds feel on some of the work that your law firm does.

1:13 So I practice family law here in Houston, Texas.

1:16 I do a lot of litigation involving custody matters, divorces, distribution of property.

1:23 I do things involving CPS, obviously dealing with our topic today, that CPS defense.

1:28 That’s also representation of kids, also CPS defense when you are dealing with just investigation.

1:33 That’s pre-litigation.

1:34 And then I do estate planning and some probate work.

1:37 So guys, call me if you need any help with any one of those topics.

1:41 Yes, awesome.

1:42 So talking about CPS, Child Protective Services, this is an institution that everyone knows about isn’t every state.

1:50 There’s laws promulgated to discuss specifically how the state can just intervene into your personal family life and help protect kids, not just kids, but also the elderly, folks who can’t take

2:01 care of themselves basically, right?

2:03 When I was a teacher years back, I remember I was taught that the licensed individual or the state of Texas, you have a duty to inform CPS if you suspect child abuse or if you’re told of child abuse

2:16 is an attorney, same thing, that’s never gone away, right?

2:20 So CPS is something that plays a role in all of our lives.

2:25 Even people who don’t have kids, or who are around children, but when we know that something might be happening to kids, we wanna make sure they’re protected And so.

2:34 tell us what are some myths or some common misconceptions that people have in the public about CPS, but aren’t actually true.

2:44 And so we want to delve into that today.

2:46 And what’s one, what’s one big one you will see in your practice, generally speaking?

2:51 So when I was thinking about kind of how we would tackle this topic today, I wanted to make sure that it was clear for individuals to understand what we’re talking about in this topic is not

3:01 necessarily how to interact with CPS or how to defend yourself against CPS. It’s how CPS involvement can impact potential litigation or your case that you’re in right now, and how CPS cannot.

3:14 One of the major things that I have encountered, especially as of late, are people who have cases where CPS might be investigating their

3:25 co-parent, their ex-spouse, the person that they’re co-parenting their child with, and they find themselves situations where either they are.

3:34 deciding to withhold the child because hey, CPS is involved or the child is being withheld from them because another parent has said well CPS is involved so therefore you can’t see your child.

3:45 There are major nuances to a lot of the things that we do in the law but one of the major things that I think people need to understand especially if you have an underlying order is that CPS most

3:56 times should not, cannot, and often will not advise you to violate a court order

4:03 You know, under the idea of being able to be protective to children, obviously you want to do that.

4:09 But if you’re in a situation where CPS has not sought active litigation and you’re trying to figure out what can I do, what should I do, my thing is always if you’ve got an underlying order, you

4:20 need to be in court, you don’t just need to be making unilateral decisions.

4:24 In addition to that, if you do not have an underlying order, you again need to be in court because if you actually believe that there’s abuse and neglect happening or there’s There is abuse and

4:34 neglect.

4:34 happening.

4:35 Let me take out that if you believe, if there’s abuse and neglect happening, you need to be actively in court making sure that you are protective and not just relying on CPS because there’s only so

4:44 much they can do.

4:46 Yeah.

4:46 But what does it mean if CPS doesn’t file anything with the courts and they don’t get involved?

4:52 What does that, what should I say to you?

4:56 When CPS has not actually sought active litigation that speaks to possession and access, nine times out of 10, it’s because they cannot meet the grounds to be able to meet their burden.

5:07 When you have a CPS lawsuit, it’s, it’s one thing for CPS to be investigating one person.

5:12 It’s quite another for them to be investigating both parents, which is when you often see them filing lawsuits to make sure that the child is protective, protected, excuse me.

5:22 But if you are a active and capable parent, that’s when it needs to fall on you, where you actually seek litigation because you cannot just unilaterally withhold a child and then expect CPS to back

5:35 you up.

5:35 Sometimes what we see often in litigation is when I have cases where a parent has withheld a child and then we go and have a full-blown hearing and the CPS worker will either remain neutral or be

5:48 subject to cross-examination where they can’t sit there and say, well, I told Sally to withhold the child from John or I told John to withhold the child from Philip, they can’t do that.

5:58 And so when the workers are subject to

6:03 cross-examination, when they’re subject to discovery, you will see very quickly that what may have happened on the outside or whatever interactions you may have had with an investigator, that isn’t

6:14 actually going to happen when we sit there in court.

6:16 And sometimes part of our jobs as litigators is to break down exactly why we’re here.

6:22 And so just simply relying on a CPS investigation is not enough to just give you unilateral decision making.

6:30 Exactly.

6:31 So if I’ve had cases where CPS got involved and my client who comes to me with,

6:39 after the CPS investigation got opened, thinks that they have a slam dunk, they have a case that’s open and shut because now CPS is gonna come in on my side, so to speak.

6:49 But is that a myth?

6:51 Does CPS involvement necessarily mean that you’re going to win your case?

6:55 No, it doesn’t.

6:57 Because now listen, do I believe that caseworkers will come in and make sure that they give the facts?

7:02 Absolutely.

7:03 Do I think that a caseworker will come in and try to be protective of a child or preserving a family?

7:08 They absolutely will.

7:10 But they are going to be giving facts.

7:12 They are not going to be giving opinions.

7:14 They are not going to be saying that Mac is better than Dannielle or Dannielle is better than Mac. That’s not their job.

7:20 Their job is to report the facts and report what they’ve seen, report their investigation.

7:24 And sometimes you’ll find in CPS investigations There are other professionals that get involved, like for example.

7:31 forensic interviewers, things of that nature.

7:33 You’ll have therapists who will get involved.

7:35 Those people come in and give the facts.

7:37 But no, a CPS investigation or a CPS investigator who has given you maybe the

7:44 idea that they may be pulling for your side or maybe you’ve interpreted what they have said as pulling for your side, that doesn’t mean slam dunk because just like you’ve had that situation, I’ve

7:54 had situations where I’ve had litigants come in and say, hey, CPS is on my side And the more digging I do, I go, well, you might be alienating that child from that parent or encouraging that

8:07 child to be saying something that’s not actually accurate.

8:09 And of course CPS is on your side because the facts that are presented to them are skewed.

8:14 And just with another attorney dismantling those facts, we now are in a different situation.

8:20 And sometimes what you’ll find that I have found also is I have had people come in and say, well CPS is on my side.

8:27 And then the minute another attorney gets involved shows, CPS, the flip side.

8:31 CPS is now,

8:33 not even aligned.

8:34 I won’t even say that.

8:35 CPS now sees the light.

8:37 ‘Cause I’ve also been that lawyer who has helped CPS see the light in what’s actually going on.

8:44 And then all of a sudden you’ve got a caseworker that’s gonna come in and say well yes, this is what was reported to me, but this is actually what happened.

8:50 And that’s a big backfire.

8:51 Exactly.

8:52 Especially when you have parental alienation issues, it’s not always black and white.

8:55 It may seem one way and CPS may be sending you signals certainly, but there’s a lot of times two sides of the story, right?

9:03 And so that’s what one of the takeaways is.

9:06 So again, number one, CPS can’t advise you.

9:09 Number two, their involvement isn’t necessarily going to be a win for you.

9:14 Now let’s talk about a third thing.

9:16 So it’s common where a third person might get involved in a child’s life or to help protect them.

9:23 Perhaps a grandparent or an aunt or uncle, CPS might go to somebody and say, Hey, listen, while we’re investigating, can you.

9:31 give this child to somebody else to help protect them, you might give them to a relative, somebody that the child feels safe with, okay?

9:39 Happens all the time.

9:40 And sometimes it wraps up and the child goes back to the mom and dad or to the mother or to the father, whoever the kid was living with before.

9:47 But does, if you give power of attorney to a non-parent, is that going to be enough to give custody to the individual?

9:57 No, no, ’cause what I often see, especially with grandparents, and I’ve seen this with non-family members as well, but it often happens with grandparents.

10:05 You’ll have a parent who, it’s an investigation, it doesn’t make it to litigation, because CPS will say, look, this kid can go stay with grandma or grandpa, and they’ll be perfectly fine, so we

10:16 don’t feel the need to go forward with active litigation.

10:19 And what they’ll do is they’ll tell the parent, who often agrees in the moment to give power of attorney to said individual, right?

10:27 And then what’ll happen is, a year later, CPS has gone, CPS has been gone, but a year later, nothing has happened other than that power of attorney.

10:35 And then you’ll have that parent either show back up and say, hey, I want to pick that kid up, and there is no court order.

10:41 Or you’ll have a grandparent who’s saying, well, CPS told me yes, but CPS told you that maybe a year ago, and there’s not really a court order that gives you rights over this parent, because we

10:53 all know the right to raise your child is constitutional.

10:56 And so there are certain ways to overcome that right, but a CPS worker securing a, excuse me, a power of attorney for you is not enough.

11:08 And so what I often tell these grandparents is that, all right, if you can work out an agreed custody order with your child or family member or whomever, do that.

11:19 Because now you’ve got something that’s on paper that signed by a judge and should anybody get buyers remorse, you can say, well, look, I’ve got this order or sometimes if you’ve got a – parent

11:29 who’s disappeared for six months at a time, you might want to go and actually seek a court order because by then you have created standing.

11:37 There’s many ways to create standing.

11:39 This is not a standing discussion, but there’s many ways to do that.

11:44 But once you are in a position to get standing, you just might want to put it down on paper. Got it.

11:50 So number four, let’s talk about reasons to believe.

11:55 Sometimes

11:57 CPS case will be closed out with a final disposition that says there’s reason to believe that abuse or neglect occurred.

12:05 Or there might be the no reason to believe that abuse or neglect occurred.

12:11 Or there might be a third option which is unable to determine we can’t really know.

12:16 We don’t really have enough facts or evidence to point to whether or not this abuse or neglect occurred.

12:21 So if you get a reason to believe that abuse or neglect

12:26 occurred in your hand by CPS when they close out the case, is that going to be enough to help you get what you want from the court?

12:34 Or can that actually backfire?

12:36 So I’m going to give you my famous lawyer answer, and that is it depends.

12:40 It really depends on the facts.

12:41 But standing there with an RTB is not enough.

12:45 It’s going to be a fact-intensive situation because an RTB, which is reason to believe we keep using these little initials acronyms, all of that stuff, want to make sure that everyone understands.

12:57 RTB, or reason to believe, means that there’s a likelihood that abuse or neglect occurred with this child.

13:02 And you’ll see that they will often name a perpetrator.

13:06 So sometimes if it’s Bob, it will list Bob

13:09 as a perpetrator and it’ll say reason to believe it can say physical abuse.

13:13 You can say a myriad of things.

13:15 An RTB, in and of itself, is not necessarily a slam dunk because there are so many factors that go into an RTB And sometimes it really comes down to the – individual investigator.

13:28 Sometimes it comes down to whether or not that individual was compliant with the investigator or with the investigation.

13:36 Sometimes it really comes down to, was there a medical professional that said they thought they saw abuse?

13:42 That doesn’t necessarily mean that it occurred.

13:47 RTB in a vacuum is not necessarily enough.

13:50 Now, is it something that a court can consider?

13:52 Yeah, because the court’s going to consider the facts.

13:54 But any good litigator is going to come in there and figure out how did we get to that RTB? I’ve had situations where I have had clients who have been RTB. I’ve appealed that RTB and it’s become a

14:05 rule out.

14:05 And a rule out means nothing happened.

14:07 There’s there’s, odds are nothing happened.

14:10 And the reason I was able to do that is because I looked at the factors of how did we get to this RTB. I had a situation where we clearly got to the RTB only because a medical professional said in

14:21 their records, Mom reported x, y, z, and so there.

14:26 or we have to market as abuse, even though we don’t necessarily see what mom has reported.

14:31 And that’s simply because it’s a medical professional and sometimes there are things in protocol within their system that they can’t necessarily fight.

14:39 And so, when someone ends up with an RTB like that, you know what I do?

14:43 I go and I pull those records.

14:44 I go and I read them, I go and I appeal them and I appeal them to the people within CPS that are above investigations.

14:50 And I have them really look at it, was able to get that thing ruled out But in that situation, I had a party that was saying, RTB, RTB, doesn’t necessarily

15:03 mean what you think it is.

15:04 Now, keep in mind, also unable to determine that is very clear in that we don’t have enough.

15:11 We don’t know.

15:12 That doesn’t mean that it didn’t happen, which is why I tell you that facts, that a lot of this is fact intensive and which is why I keep telling everybody here, CPS involvement is not the only

15:23 involvement.

15:24 that you need to be looking at.

15:25 It’s not the ultimate crux of your case.

15:27 There are facts surrounding it.

15:29 And sometimes, and again, I do CPS defense work, but please don’t think I’m coming in here and saying CPS is just awful.

15:37 They are necessary, they’re necessary.

15:40 They protect children, APS protects adults, but also their whole idea is family preservation.

15:47 So they provide services.

15:49 They can do things of that nature However,

15:52 they don’t always get it right.

15:54 And let’s just call it what it is, they don’t.

15:56 I think they are a well-meaning agency, but they are still an agency with bureaucracy.

16:00 There are things like that.

16:02 And so when you are just looking at that and going, well, I got CPS involved, so therefore, no, not enough.

16:08 Yeah, so, and by the way, you had used a phrase ruled out a second ago.

16:13 And so would that be that middle, no reason to believe?

16:17 That’s what I had Yes, yes, so the thing with CPS is you have to become very familiar with their vernacular.

16:23 And I read their handbook like nobody’s business and you can look up their handbook online.

16:28 It’s all there, but there are three findings that can be made that’s reason to believe which is abuse or neglect likely occurred.

16:37 There’s unable to determine which is we are not really sure whether or not it occurred.

16:41 We either don’t have enough facts or we weren’t able to investigate it enough to make that determination.

16:46 And then there is ruled out which means we don’t believe that abuse or neglect occurred There’s also a fourth one that’s an administrative closure but I don’t really have time to explain that

16:56 necessarily but you can always look that up.

16:58 And just so we’re clear, we keep referring to the agency as CPS because that’s the common name here in Texas.

17:05 They are the Texas Department of Family and Protective Services.

17:08 Correct, all right.

17:09 Last myth or last misconception.

17:13 Let’s talk about CPS neutrality.

17:16 Broadly speaking, I think everyone would expect that CPS comes into your life.

17:21 they are for the state, so therefore they’re neutral.

17:24 They’re not gonna have a dog in the fight, they just had to help protect kids.

17:27 But sometimes that doesn’t necessarily happen or it may actually backfire, especially if there’s some nefarious thing going on by a CPS case worker.

17:36 But just talk to us about a common misconception you see with regards to CPS neutrality.

17:41 Okay, so first things first, we wanna make sure that everyone understands, this is not a video to vilify CPS, definitely is not every CPS worker is nefarious.

17:52 Some of you guys are actually okay.

17:54 You don’t catch me saying that, some of you guys are actually okay.

17:58 But with that being said, when it comes down to CPS neutrality, I think there is a common misconception that CPS is going to come in there and they’re going to be able to, number one, make

18:08 decisions for families.

18:10 But number two, that if they come in and they’re interacting with a person, oftentimes, depending on what the interactions are, you’ll find a parent who thinks, oh, CPS is really on my side.

18:21 They’re really, really on my side.

18:24 CPS may agree with you.

18:26 They may agree with what has been reported.

18:29 They may agree with what you are concerned about.

18:31 But at the end of the day, CPS is on the side of protecting children, APS protects adults.

18:38 CPS is on the side of family preservation.

18:40 They are on that side.

18:41 So what people need to understand when we’re talking about CPS neutrality, what we’re talking about is when they come into court,

18:49 if it’s a good worker, you are not going to find a worker who says, I told Mac to withhold that child.

18:57 I don’t care if the worker did tell you that.

19:02 Odds are that worker, if they’re smart and if they’re trained well, they are never going to come in and say, I told Mac to withhold that child because they cannot do that.

19:11 Now, that’s absent like, exigent circumstances.

19:13 If you’ve got a kid that’s, you know, there’s so many nuances to that but in my.

19:19 experience in dealing with litigation, particularly in custody lawsuits involving private parties where the the state has not filed a lawsuit of their own.

19:29 You are hard pressed to find a worker who can come in and testify that they’ve told a parent to withhold a child.

19:35 With that being said, that doesn’t mean that individual didn’t tell that parent to withhold that child.

19:41 When a person is when a person is subject to cross examination, you can see how quickly things become a little bit different.

19:50 And it becomes more about preservation of self.

19:54 It becomes more about making sure that they are dotting their I’s, and crossing their T’s, make sure you didn’t get that wrong, and making sure that they are following protocol.

20:02 And so that’s why I’m always, like, for example, with my clients, if I’ve got a client who I think a worker has overstepped their bounds with the other party, or has aligned themselves too much

20:13 with the other party where they’re not actually doing a thorough investigation, I And this is a secret that I’ll tell everybody.

20:21 I generally tell my client, text that worker and say, hey, did you tell that person to withhold that child?

20:26 Because you can’t imagine how quickly the worker will text back and say, no, I didn’t say

20:33 that.

20:33 And I’m not necessarily saying that they all say it.

20:37 I’ve run into some bad apples that have actually said it.

20:40 And then when you call them to the mat, they don’t know what to do.

20:42 But you need to understand, particularly if you are relying on a CPS investigation to allow you to withhold a child, to allow you to violate a court order, or to allow you to just move unilaterally

20:56 without getting court intervention involved, that can backfire on you.

21:01 Because sometimes, I’m not saying that they can’t come in and try to protect, but you are not, as a parent, only to rely on them.

21:09 You’ve got to then utilize the court system.

21:12 Awesome.

21:12 So I know this video was somewhat technical.

21:16 when it comes to CPS, however, for the people that it matters to, it was very informative, all right?

21:21 Because you kind of need to know, what are some of the common things that you see that are necessarily not true, that are mythical?

21:29 And so, some of the takeaways, CPS can advise you just because they’re involved doesn’t mean that you’re going to just win your case; simply because you give a power returning to a grandma or an

21:39 aunt or uncle is not enough

21:42 to just give them custody

21:44 A reason to believe is not necessarily helpful to you.

21:49 And CPS has to be neutral.

21:52 However, sometimes that doesn’t always happen.

21:54 And so, Dannielle, thank you so much for the talk today about this topic.

21:59 And if people want to contact you again, we did share your website earlier, but the website name SimmsLawGroup. com

22:08 make sure that’s the best way people can get the hold of your right.

22:11 Right, and I do want to say this one last thing.

22:16 make sure that you understand that the protection of your child is also on you.

22:22 And the reason that I say that is because one time I had a case where I had a parent who was withholding from my client and I was able to get a hold of text messages between that individual and the

22:31 worker saying, what can I do to protect my child without having to hire a lawyer?

22:36 And I realized that litigation is a luxury and sometimes it can get expensive.

22:42 But at the end of the day, it’s things like that that make me tell people you cannot just rely on the agency, you’ve got to be proactive as well.

22:52 And for those of you who are having children withheld from you erroneously,

22:57 you need to get into litigation also.

22:59 And I hate to say that because obviously as an attorney it’s helpful for me, if you’re getting into litigation and I realize that like I said, it’s a luxury because it can be very expensive.

23:09 But at the end of the day, that being proactive is how we move forward.

23:15 You know, reminds me of the days I worked for the Attorney General Child Support Office, where somebody might say the exact same thing, what can I do to give my child support without having to get

23:22 a lawyer, right?

23:23 And so people sometimes want to take that shortcut, but trusting that the AG or CPS in this case will be there to be the end all be all and take care of all the, you know, the workload required in

23:36 your case, and protect your kids, like you said, it’s on you too..

23:39 Right.

23:40 So you have to make sure that you pick up the phone and you call whoever you got a call to help protect your interests and your kid’s interests Right.

23:45 Right.

23:46 All right.

23:47 Thank you so much everyone.

23:48 Until next time, check out LMIPodcast. com where you can see more of these videos and the other suite of videos that Dannielle has been so, you know, nice enough to help do.

23:60 Thank you so much.

24:00 Thanks for inviting me back.

24:01 Absolutely.

24:02 Take care guys.