Transcript

Carrie Tapia: Just remember that this is not supposed to be a fishing expedition. This is just like you’re talking to the police. Anything that you say can and will be used against you, and they’re not your friend. So don’t offer more information. Don’t dig your own grave. You can be courteous without spilling all your guts.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Carrie Tapia to the Texas Family Law Insiders podcast. Carrie is a senior attorney with the Draper Law Firm. In addition to her JD, she has a bachelor’s degree in social work from the University of Mary Hardin Baylor, and a Master’s in Social Work from the University of Texas. Prior to becoming an attorney, Carrie worked as a caseworker for CPS. She utilizes that experience to help guide family law clients as they navigate involvement with CPS, offers advice on how to avoid CPS litigation, and represents clients in appealing unfavorable CPS outcomes.

Carrie is an active member of the Tarrant County Family Law Bar Association, was selected as a Top Attorney for Fort Worth Magazine for the past five years and a Top Attorney for 360 West Magazine for the past three years and was selected as a Rising Star by Super Lawyers every year since 2020. Thank you so much for joining us today.

Carrie: Thank you for having me.

Holly: So why don’t you tell us a little bit about yourself?

Carrie: Well I practice family law primarily in Tarrant, Dallas and Denton counties. And I’ve been doing so for the last seven years. I live in Tarrant County in the Mid Cities area with my husband and two sons and two dogs.

Holly: How would you describe your current practice?

Carrie: I handle mostly divorces and child custody cases. There is a lot of overlap in those child custody cases with CPS. So I help clients navigate that aspect as well. I can also be retained to represent a person that’s being investigated by CPS even if there isn’t currently a court case accompanying it. And also to appeal CPS dispositions when they’re not favorable to the client or my client, if the client doesn’t agree with them.

Holly: And that’s not talking about an appeal like to the Court of Appeals. That’s talking about administrative procedure?

Carrie: Yes, it’s administrative. It is not in a courtroom. It’s more informal. There’s no rules of evidence, things like that.

Holly: So CPS is the reason that I wanted to bring you on today. You have a very unique background with your prior experience as a CPS caseworker, and then going on to become a lawyer. Can you tell us a little bit about your background working with CPS?

Carrie: Sure. So after I got my master’s in social work, I was a conservatorship caseworker for the Texas Department of Family Protective Services, which is the overhead agency of Child Protective Services or CPS in Bell County, Texas. And I did that for two years before I went to law school. So I was the parent’s main point of contact with CPS after the state had already done a legal removal of the children from the parent’s care. And so the state had conservatorship or legal custody of the children.

So I was the worker for the family, I made contact, I had to make contact with each of the children on my caseload at least once a month, I was the one that was visiting them in their foster homes or placements, wherever that may be, or at school, making sure that they were getting adjusted having their needs met. I was also meeting with the parents at least once a month to provide services for them make sure that they were working on their service plan to try to achieve reunification.

And I was also conducting and supervising their parent-child visits when they did have access to each other that way, just to see how their interactions were going. The goal was to achieve permanency for the children and hopefully that would be back with the parents. But sometimes that didn’t work out and we would have to look at other options such as family placement or unrelated adoption, when that wasn’t in the children’s best interest to go back with the parents.

Holly: So obviously our careers as family lawyers, you know, we touch on CPS some, but aside from that, how do you feel like your CPS background helps you in being a family lawyer?

Carrie: So as a caseworker, I was in court at least once a once a week as a witness. And so I think that that gives me a unique perspective in preparing my witnesses to testify and in preparing my direct and cross-examination, because I was a witness for two years. And so it just gives me a perspective kind of to see things from their point of view. Also in representing or whenever there is a CPS investigation going on. It helps me to help my clients through it because I know what CPS, I know what kind keywords to use. I know what CPS is looking for, or I can kind of put myself in their shoes as far as how they’re interpreting things.

Holly: Let’s talk a little bit about what the general processes are like at CPS because I know those of us who have never worked there, it can be a bit of a mystery. So can you describe for us what happens when someone makes an allegation to CPS of abuse?

Carrie: Sure, so the allegations are gonna go through statewide intake, there’s a 1-800 number or you can report online. And then the statewide intake worker assigns either priority one or priority two. Priority one is when there’s a severe risk of harm or death of the child, and the department investigator has to make contact with the child within 24 hours. Priority two, they have 72 hours to make contact.

There also is like a process where they can get approval to take a little bit longer to make contact if necessary. Sometimes, it doesn’t even get to that level. And the statewide intake will do what’s called an administrative closure. There’s a couple of different reasons for that. If there’s just not enough information to even do an investigation, they’ll do an administrative closure, or if there’s already other investigations pending with the similar allegations, they’ll do an administrative closure.

So then, at intake or after intake, it’s assigned to an investigator who then makes contact with the children and the parents. And then at that point, the investigator is the main point of contact. And they have to meet with the child at least every 30 days, while the investigation is pending, communicate with all parents and look into the allegations, they might request some immediate things such as a safety plan, or make referrals to resources as part of their investigation.

Holly: So are there different levels of, because I’ve heard recently in something where, you know, there’s investigations, but then there’s sort of like an investigation to see if there should be an investigation?

Carrie: I think that might be the alternative response, which is a lesser investigation. It’s a different unit that does it. It’s on the newer side, it actually started after I left the department. So I don’t have direct knowledge about that. But my understanding is that it’s much more collaborative. It’s kind of like a family room kitchen table meeting with a representative from the department to just talk through what some of the concerns are.

See if there’s any resources that can be provided, such as counseling, parenting classes, things like that. So an investigation is going to end with a disposition of either reason to believe, ruled out or unable to determine. And then alternative response doesn’t have that type of disposition. It’s just closed out and either offered services or didn’t offer services.

Holly: Okay, so if there’s an alternative response, and they determine there’s a problem, can that transition then into a normal investigation?

Carrie: Yes.

Holly: I think most attorneys and probably most people in general are familiar with litigation involving CPS, where we’ve had a removal and we have attorneys appointed and we’re in court and all of that. But can you talk about some of the lesser levels of involvement CPS has with families?

Carrie: So one of them is the alternative response that I just mentioned. Another one is family based safety services, which is where parents agree voluntarily to cooperate with the department after an investigation to work some services and the department, the state, pays for those services. So that can be a benefit to parents that might not be able to afford it otherwise. Those are the two alternative response and FBSS, or family-based safety services are the ways that CPS stays involved after an investigation is closed out but does not do a legal removal.

Holly: In child custody cases when we are dealing with families, it’s not unusual for someone to call CPS on one or both parents, oftentimes one parent is calling on the other even though we may not be able to prove that or CPS won’t acknowledge that but we know. Right. So what advice would you give a client when CPS wants to interview them during a family law matter?

Carrie: It really depends on what the allegation is, and if there’s any truth to it. I mean, if it’s just completely outrageous and can be addressed, like by something simple, such as a negative drug test, I usually say just do it, get it over with, get them out of your life so that way we can just focus on the actual court case. But if there’s something you know, more in-depth, then I would say that you know, you should have an attorney present for the meeting.

Not all clients can afford that or if they’re not interested in you know, having me do that, then I always tell them you know, just remember that this is not supposed to be a fishing expedition. This is just like you’re talking to the police. Anything that you say can and will be used against you and they’re not your friend. So don’t offer more information. Don’t dig your own grave. You can be courteous without spilling all your guts.

Holly: Does a parent have to meet with CPS if CPS requests it?

Carrie: No, a parent does not have to meet with CPS. If they refuse, then the court can get involved. CPS can seek court intervention to make the parent do some services. If the court is already involved and these are just, this is just a bogus allegation, which is a lot of times with these cases are whenever there’s litigation, it’s parties trying to weaponize CPS. I’ve just found that the best way to mitigate it is to just address it and get it done.

Holly: So CPS, if the kids are old enough, will always interview the children. What kind of rights do parents have with regard to if CPS interviews children?

Carrie: So a lot of times CPS will go meet with your kids at school before you even know about it. They do not have to tell you ahead of time. They do have to notify you afterwards, though. That’s a pretty invasive thing that CPS does have the right to do.

Holly: What recommendations do you have for attorneys when it comes to communicating with CPS when we have active litigation going on?

Carrie: Yeah, so first of all, if CPS, if their attorney is involved, so if it is like a CPS case, where CPS is a party, always CC the department’s attorney. That doesn’t happen sometimes. And that means that you’re, I think people, attorneys forget that that’s a party that they’re dealing with directly, and that they’re not allowed to do that. Now, a lot of times the attorneys will say, you know, you can discuss this directly and not involve me, but until you get that, you should always include the attorney.

But other than that, I just have found that being respectful and not coming at them with a superior attitude or talking down to them, helps. Because I mean, yes, there are bad seeds in every profession. But I mean, when I was working at CPS, no one was there because we were trying to take kids from their parents for no reason. No one was there, I mean, there was no bonus for removing children. I know that’s a joke that goes, there was no bonus for that, there was no bonus for getting termination. You know, I think most people that enter that profession truly are trying to protect children.

And yes, we can have a difference of opinion about the best way to do that. And what’s necessary to do that, but I have found that approaching it in that method from more of a collaborative way. You know, tell the worker look, I know you’re trying to keep the kids safe. That’s what my clients trying to do too. So trying to approach it from like a teamwork can help kind of take that adversarial relationship down a couple of ticks, to try to get things in a more favorable outcome for your client.

Holly: Do you normally allow your client to speak directly with the caseworker? Or do you try and get in between them and make sure everything is going through you?

Carrie: It really depends on what the allegations are, and my client’s ability to not say too much. And it’s ultimately up to the client. But usually, at least to start at the beginning of an investigation, I’m going to say I need to be involved in all communication. And then if I can tell that the investigator is not concerned, or my client feels confident, and that they can handle it, but call me in if they need me to, then I can take a step back.

Holly: One of the things I think most family lawyers really get frustrated with in dealing with CPS is the inability to subpoena records in a timely fashion. And I know oftentimes, when there has been prior CPS involvement, we want really badly to get those records or to get CPS in there to explain that, yes, there was a reason to believe finding, or you know what their concerns were related to the other side, or the fact that they had no concerns related to our client. Do you have any tips for either getting records or getting CPS to cooperate when there’s been prior involvement?

Carrie: So what you have to do is subpoena the most recent worker or investigator and then I think it’s helpful to send the executed subpoena to the Regional Attorney. That way you have let the attorney know that this is what you’re getting. You have to do so plenty of time in advance, as you mentioned, it can take a really long time to get these records. And also remember, they’re not going to send you anything involving an active investigation. So if there’s currently an investigation pending, you might need to wait until that investigation is closed out before you subpoena the records, or else you’re just going to have to subpoena again, to get the new records.

Depending on the timing of your case, you might consider that. Also remember that if you’re requesting records when the other party is the one being investigated, you’re gonna get heavily redacted records. They’re not going to send you that information without a court order. So if that’s something that you really need, going to court, filing that motion, getting the judge to order them to release that record is going to be your best bet.

Holly: Do you like to subpoena caseworkers or investigators to come give testimony instead of getting records or in addition to getting records?

Carrie: Well, if the case is, if the investigation is still pending, then having their testimony is really all that you can get, unless you have a hearing to make them give you to have the court order that they provide their partial records, which is not something that I think would be beneficial at that point because it’s still pending. So that’s all the records would say. So yes, I have had plenty of CPS investigators come testify. And a lot of times that can be better than having the record. Because I don’t know about your cases, but I’ve often seen judges don’t always read everything that we produce in writing to them. So having a live person there speaking can be helpful.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for nonparent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights and grandparent access. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So you mentioned subpoenaing the most recent caseworker. What if we don’t know who the most recent caseworker is? Is there an easy way to find out?

Carrie: I would contact the Regional Attorney and find out who to subpoena.

Holly: Are you going to have to send them, you know, letter of representation or something before they will speak with you?

Carrie: You shouldn’t.

Holly: So how do we go about finding the Regional Attorney for our area?

Carrie: It’s online. It’s on dfps.com. I don’t, or gov I think it is. I don’t know exactly where but I know it’s on their list of all the regional attorneys.

Holly: So we often as family lawyers, in addition to dealing with CPS as sort of a side part of an ongoing active child custody case, people will call our office, any family lawyer, we get phone calls with somebody who has just been contacted by CPS. Or CPS is starting an investigation or they found out CPS interviewed their children. Is there anything you do differently as an attorney dealing with these types of clients as compared to somebody who is involved in currently pending custody litigation?

Carrie: Not super different, because I just assume that there’s going to be pending custody litigation one way or another anyways. So I approach it pretty much the same, you know, just making sure that the client knows that this is the police. This is like talking to the police. People understand that, you know. What you say can and will be used against you. Don’t offer information. You can insist that your attorney be present. If I’m retained to represent them, even if there’s not a pending court case, I will say all communication needs to go through me to assist in hopefully, getting that investigation closed as soon as possible.

Holly: What type of advice would you give to clients that can help them avoid removal or avoid CPS being involved in litigation with them.

Carrie: So take steps on your own to mitigate the safety concern. If you know that your ex is going to call in a report saying that you’re on drugs, go get a negative drug test, or have a plan in place for you know how you’re going to keep the kids safe until you can produce a negative drug test. Such as having a family member come stay with you for a few days. Something like that. Document any injuries. I mean, all kids fall and scrape their knee, bump their head.

If you know that you’re in a co-parenting situation with someone that likes to use CPS, document that hey, you know, she just fell and she’s got this little scratch I put a bandaid on it or whatever. And then for possession exchanges, tell them ahead of time, kind of take the wind out of their sails a little bit. Say, oh, yeah, he fell. He’s got a bump on his head. You know, also, having an ongoing relationship with your child’s pediatrician is very helpful.

Rather than you know, jumping around to lots of different pediatricians or only going to urgent care, lots of different doctors, things like that. Having that ongoing relationship with the pediatrician, because CPS is going to contact them. And so if they can just get in one place, okay. This parent is meeting the child’s needs. This professional provider has seen the child X number of times has had no concerns. That can help to boost your side of the story.

Holly: Would you say the same thing about the child’s teachers?

Carrie: Yes. I mean, having an ongoing relationship with your child’s teachers is going to be important. It’s a little bit different because it’s not more of a medical side of things. But CPS definitely talks to the school administration and will reach out to individual teachers if it’s something relevant.

Holly: One of the areas that most family lawyers, myself included know probably the least about when it comes to CPS is the administrative review process and what to do if a client or potential client has gotten an adverse finding from CPS. And when we’re talking about an adverse finding, would you identify that only as reason to believe? Or would you also put unable to determine in that category?

Carrie: So you can only do an administrative review, f it’s reason to believe. Usually, an unable to determine, I don’t really consider that adverse to most parties, unless they end up with you know, tons of unable to determine and then it can kind of start to stack up against them and look like there might be something going on. But generally, I’m happy with an unable to determine or a ruled out.

Holly: So somebody calls into your office, and they have just got a letter from CPS saying there’s reason to believe, and they disagree with this finding. Talk with us a little bit about the process, what to do from there. And how do you appeal that?

Carrie: The most important thing is going to be the date on that disposition letter. You have 45 days from the date of that disposition letter, to appeal it or to file your request for administrative review. So if you know what’s coming, I always tell my clients, check the mail, make sure that CPS has your actual mailing address and not your mom’s or your whoever. Check the mail. Because that’s going to be very important, and they only snail mail it to you. So we need the date on that letter. And then you have 45 days to request your administrator review or ARIF, administrative review of investigative findings. Always request the records.

So what you do is use the disposition letter on the back, it has the directions for how to start the process, you just put a little blurb about what it is that you’re appealing. And then the client has to sign it or you can sign it on their behalf and then you send it to the investigator. I also send it to the local administrative review specialist. But you don’t have to do that. And maybe they don’t like that I do that. But I want to make sure that we are getting this process started. And that it’s not going to fall into a hole somewhere because that investigator is less left the department or whatever. So that’s the first step.

And then once it gets forwarded to the specialist, then they will contact you to either schedule the first scheduled interview, or you can request the records. I always request the records, because what you’re trying to do in the administrative review is essentially prove someone that works at the department that the department messed up. And so the best tool against them is their own policies, their own manual, their own procedures. And you can’t do that without having their records.

So I request the records, and then I review them right next to the procedures, like I said, and try to poke holes in anything that they did wrong or any procedure that they didn’t follow correctly in my preparation for the meeting. Now, sometimes people call it a hearing, but it is not hearing like attorneys think of hearings. Like I said, it’s you know, you’re just sitting there across the table, it’s very informal.

There’s no rules of procedure, there’s no evidence, it’s just you talking or your client talking, and just telling your side of the story saying what you think they messed up on. And I’ve also found it helpful to point out how it impacts your client. If you have this ridiculous reason to believe and you’re a teacher that’s affecting your livelihood. You’re not able to do your job, you know. And so pointing out that it does matter that and why it matters, in particular to this client, I have found to be helpful.

And the resolution specialist might have some questions as well. It is important to remember again, though, you’re still talking to the police. So if there’s a pending criminal case, that kind of goes hand in hand with this investigation, you need to really advise your client that they might should plead the fifth, and definitely bringing their criminal defense attorney on board before you have this review hearing.

Holly: You mentioned looking at the policies and procedures and poking holes in what they’ve done as part of the process. If they have not followed policies and procedures, can that essentially gets you out of a reason to believe finding on a technicality. Even if you know it’s justifiable. We can we can tell from whatever they have that yes, there should be a reason to believe finding, but they didn’t do things correctly along the way.

Carrie: So I don’t believe that the administrative review process would be the one to get that kicked out. That would be the next step of when you go to the office of internal investigations in Austin for the next. So if you lose at the ARIF, then the next step is to go to Austin. And that I think is where you would be more likely to get it kicked on a technicality.

Holly: You mentioned this administrative review process is not necessarily the end of the road. Well, first of all, is it recorded? Is there a court reporter or are they audio video buying anything?

Carrie: It’s not recorded. I will say in my experience, the administrative review specialists that I’ve met with because I’ve only done these in Tarrant County, so I’ve only met with one person. She writes really fast, and she writes everything down. So it’s not officially recorded, but it is well documented.

Holly: So is there any sort of timeline by which you have to have this meeting within the administrative review process? Or is it just whenever, as long as you meet the deadline for filing a claim?

Carrie: So they have deadlines that they impose on themselves. They have pretty quick turnarounds, I think it’s usually 15 days unless you are asking for the records. And then after you get the records, you have another 45 days to then schedule your hearing or meeting with them.

Holly: Backing up a little bit. You mentioned when somebody gets a reason to believe letter on the back, there’s instructions about this administrative review process and you fill out you know a blurb about what you’re appealing. Now, let’s say that your client filled that out on their own, and they appealed x and you realize you should have appealed y, or you should have also appealed y. Do you have the opportunity to change that? Or are you locked into whatever the client put down initially?

Carrie: You can submit anything in writing that you want at the meeting. So no, in my experience, you’re not locked in on what is put on there. That’s just kind of to give them a general sense of it. And then at the meeting, you can submit other things in writing. I’ve submitted witness statements, other summaries from people that were there, that you know, said what they could say, and then you can submit that at the meeting also.

Holly: So you don’t bring in these other witnesses to testify or anything. Are you getting them to sign affidavits? Or can they just write it and sign it?

Carrie: I mean, I had them sign it. I had them do an affidavit. I don’t know, I don’t know what weight that had on the outcome. But that was the best evidence that I could come up with without having them testify. Since it’s not really a hearing. I know you can’t bring other people in to speak.

Holly: Are the odds of success on administrative review even remotely worth it for a lot of people?

Carrie: It’s pretty low. Like I said, you’re asking for one person at the department to say that what the department did was wrong. It’s in the same, they’re the same building. I mean, I have found that the outcome is not usually favorable. It’s not very common to get one overturned. And it really depends on your client. I mean, like I said, the teacher example that I gave, if it’s somebody that wants to adopt if it’s somebody that wants to be a foster parent, if it’s somebody that works at a daycare, or wants to work at a daycare, or if it’s someone that has really young kids that I mean, and a litigious other parent that’s going to keep calling things in, then yes, I generally advise that it’s worse going through this process.

Because you have to do the administrative review, to do the Office of Internal Affairs. So it’s worth starting the process. So that way you have another your foot in the door to do the next step, if that’s what you decide. But you know, some people, for some people, it might not be worth it. If you know you’ve got a teenager, you don’t have any other kids, you’re not, it’s probably not going to affect you, then it’s probably not worth the money to go through this process. Unless it’s something that can impact your future.

Holly: So you lose at the administrative review, and you still have this reason to believe finding. You mentioned the next step then is the Office of Internal Affairs. Can you talk about what that process looks like?

Carrie: So after the administrative review comes out disfavorable to you, you have 30 days to request that, which is the next step. I can’t speak to the ins and outs of that, because that’s not something that I’ve done. I refer that to someone there in Austin, because that’s not something that I want to dabble in. It’s a whole unique process. And until I’ve done one, I don’t want to, to have assisted with one, I don’t want to try to lead someone astray.

Holly: So is that then the end of the road? If you lose that level, is there, are there any other options left?

Carrie: There’s no other options that I know of. That could be incorrect, but there’s none other that I know of.

Holly: So if you could give one or a handful of pieces of advice to family lawyers who are dealing with CPS with their clients, what would that advice be?

Carrie: Well, I’ve said it a couple of times, but remember that CPS is the police. So reiterating to your client not to dig their own grave. Don’t offer information. Don’t try to weaponize CPS, like I said, you know, calling in allegations that don’t really need to be called in is unnecessary if you’re just trying to do it to get a leg up in court and it’s probably going to be unsuccessful. Because most judges that I know don’t really care what CPS says, they’re gonna do what they think is in the child’s best interest. And you still have to prove your case.

You can’t just have CPS come in and think they that then you’re not going to have to do any work or put on any other evidence. You still have to prove your case to the court. But as far as you know, interacting with CPS, I think it’s helpful just to remember that it’s a person. And a lot of the issues are more at a bureaucratic level, and trying to at least start out with that individual from a place of respect and collaboration, rather than just coming in guns blazing and a normal attorney approach perhaps.

Holly: Not for all of us, not, not all of us are like that.

Carrie: The ones that give us a bad name.

Holly: Yes. So we’re just about out of time, but where can our listeners go if they want to learn more about you?

Carrie: Our firm’s website. Draperfirm.com.

Holly: Well, thank you so much for joining us today and hopefully, the attorneys out there have gotten a little bit of useful information about dealing with CPS. For our listeners, if you enjoyed this podcast, take a second to leave us a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.