Transcript

Julia Hatcher: You’re dealing with parental rights and that, you know, we call that the death penalty of civil law. If a parent’s rights get terminated, it’s, it’s like getting the death penalty in a criminal case. Yes, you will, you will go to trial, but make sure you know what you’re doing before you do that.

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: We’re excited to welcome Julia Hatcher to the Texas Family Law Insiders Podcast today. Julia has been practicing family law in Galveston, Texas for over 22 years. She’s the president of the Texas Association of Family Defense Attorneys, which is a statewide group of attorneys focused on the defense of the family. Founded in February of 2020, TAFDA’s mission is to preserve and advocate for the right to family integrity, which is guaranteed by the Texas and United States constitutions. They fulfill that mission by educating and training attorneys who represent parents and children in parental termination and child protection cases, by equipping those attorneys with the information, skills and tools necessary to be successful in the courtroom, and by participating in the legislative process to affect changes in the law that are beneficial to families. Thank you so much for joining us today, Julia.

Julia: You’re welcome. Glad to be here.

Holly: Can you give us a little bit of your background in family law and how you got to be where you are today?

Julia: Sure, I started practicing law in 1998 in Galveston, Texas as a sole practitioner. At the time, I was focused mainly on criminal law and CPS defense because those were the cases that you could get appointed to. But since that time, I’ve also been involved in divorce cases, child custody proceedings, child support proceedings, juvenile defense. So I really have a wide range of experience. Currently, my focus is on CPS cases and CPS reform.

Holly: So that leads us to the organization of which you were one of the founding members, the Texas Association of Family Defense Attorneys. Can you tell us how that organization came to be and what it’s all about?

Julia: Sure. So there were actually a couple of things that prompted the founding of TAFDA. Back in the 85th session at the Texas Legislature, which was four years ago now, I was working with my state representative to craft a defense for parents whose rights were subject to parental termination, because they failed to complete court order services. I had noticed that many parents’ rights were being terminated on that ground, because it was the easiest ground for the department to prove. The appellate courts were upholding those terminations, and the parents were not able to defend themselves because there was nothing in the statute. So I set out to fix that. 

And while I was working that bill in the legislature, it had been suggested to me that, you know, there really needed to be an organization of attorneys to fight for the rights of parents, and at the legislature would be much more open or amenable, or I don’t really know what you want to call it, but they’d listen a lot more if there was just me more than just me. at around the same time, I had been appointed to be a member of the legal representation committee of the Texas Supreme Court Children’s Commission. And they had commissioned a study of legal representation of parents and children in CPS cases. And when that report was finally published, at the end of 2018, unfortunately, did not shine a good light on representation of parents and children. 

So taking those two different issues into account, I started thinking about how we could start a statewide organization for family defense lawyers. That was similar TCDLA, which is the statewide Association for criminal defense lawyers. And so I thought about it for about a year. And then realized, well, we got another legislative session coming up in a year, I better do something. So I contacted some other attorneys who I knew were staunch advocates of families, families rights, parents rights. I invited them to my home. And after we had lunch, we talked about my vision and what we wanted to accomplish and what we thought needed to be different. And that’s how TAFDA was born. And that was on February 22 2020 at two o’clock. So if you’re in the numbers, that’s a lot of twos.

Holly: So now you’ve been together a little over a year, and one of the is the specific mission of TAFDA.

Julia: So our mission is to preserve an advocate for the right to family integrity and what family integrity is, it’s a constitutional rights and are recognized by the Supreme Court and the Fifth Circuit and the state of Texas basically means keeping the family unit together. So parents have constitutional rights to raise your children, rights to make decisions regarding the care, custody, and control or their children. If if, you know in some of these cases, parents cannot be reunited with their children, we then we strive to make sure they are at least kept within the family, you know, extended family, so that, you know, in the future, you know, they’ll always have access to their parents. We do this by offering training to lawyers, we haven’t really been able to have training because of the pandemic. But we you know, we have offered monthly CLEs and, and right now we’re advocating to the legislature for changes in the law.

Holly: So this has obviously been a strange year with the pandemic. But what has TAFDA been able to accomplish in its first year of existence?

Julia: So we currently have about 86 members, and who represent over 100 counties in Texas. So I think that’s pretty good growth during a pandemic, especially since we haven’t been able to be out and about and having live trainings and whatnot. And we haven’t really been able to get out the word that’s just been word of mouth. We have been able to offer free monthly FCLEs’s by Zoom, we’re able to make that happen. And we were able to register with the state bar so that we are able to give CLE credit. We were offering the monthly last year, but now with the legislative session, we’re focused really more on that, but hopefully it will start up again, once sessions over.

Holly: So speaking of the legislative session, are there any, what kind of bills are you working on now? And what’s your involvement with legislature through this session?

Julia: So we were able to get nine bills sponsored by Representative Dutton and co authored by Representative Middleton, really excited about that. We have a legislative committee that we basically went through the family code, and we asked, okay, we asked ourselves, okay, what what do we want to change in the family code that’s going to benefit families, you know, what’s happening in the courtrooms that we think needs to be changed. So we drafted some proposed bills, we submitted them to several members of the legislature, and we’re very lucky on representative Dutton pick them up, and Representative Middleton agreed to co sponsor them or co author them. Three of the bills were heard last Tuesday, just a couple of days ago in the Human Services Committee. One of them HB2550 is to limit the amount of services the department can require of a parent without getting a court order as to why more services are needed. 

2551 is regarding placement of children, and outlines a placement preference, which says that, you know, when the department wants to place a child, they need to be placed in the following order. One is with family by blood, marriage or adoption. Second would be what they call fictive kin, somebody who’s had a long standing relationship with the child. The third choice would be foster care, and the last would be a residential treatment center. And we thought that was necessary because right now that apartment equates relatives with fictive kin. Since we strive to keep the family together, we wanted to change that we think that’s necessary.

Holly: And so then under that bill, if that passes, the department would have to show the court we tried to get family, this is what we tried, there wasn’t anything available. This was the second stage with relatives or fictive kin, this is what we tried to do before they can get to foster placement or, you know, worst case scenario, a residential facility.

Julia: Correct. And then HB 2552 was a bill regarding investigations. So when the department currently when they first go out on an investigation after they receive a referral, they’re not required to interview the parents or the children. The only mention in statute right now is that they should interview the child. But if their equipment malfunctions, or they don’t have the equipment or whatever, then they’re excused from doing that. And of course, they never do that. So we wanted to add in that the parents and children must be recorded. 

And that is basically because we find at hearings, you know, CPS worker will say, well, mom or dad said this, Mom and Dad are saying I didn’t say that, and we have no way to prove it. And of course you have CPS against the parent, who’s the court gonna believe. So we wanted to have that recorded and then the other part of that bill, states that CPS cannot drug tests children or parents during an investigation and they cannot threaten the removal of the children in order to coerce the parents to submit to drug tests because that’s a violation of Fourth Amendment. We have four other bills that are pending in the juvenile justice and family issues committee that have not been set for hearing yet. But hopefully we’ll get there in a couple weeks.

Holly: Are there other bills out there that you keep an eye on that maybe you weren’t presenting, but that you’re going to be involved with testifying, advocating for, those types of things?

Julia: Sure. We testified on five more bills that were in Human Services Tuesday, and will be testifying on eight more bills in the juvenile justice committee next Monday. We previously testified on a big bill as HB 567, which is an omnibus bill that was authored by Representative Frank, who’s the chair of Human Services Committee. Changes a lot of things in CPS, and almost too much to get into on this podcast. But if you go look at 567, you’ll see that if that bill passes, and assigned by the governor is gonna change the landscape of CPS, so we’re very, very excited about that.

Holly: That would change it for the better in your opinion.

Julia: Yes, absolutely.

Holly: When will you find out if your bills are going to make it to the next step or when they’re if they’re going to get actually passed?

Julia: Well, you know, after the testimony is heard during a committee hearing, they’ll leave a bill pending. And then it’s typically it’s the next week, they’ll vote on whether or not the vote the bills out, but doesn’t always have to be the next week. So you just kind of have to watch on tlo. If you could get bill in you sign up for bill alerts, and get noticed, you know, when the bill moves. Once it’s voted out of committee, if it is, then it has to go to the floor has to do calendars to get placed on the floor. And then if it’s voted out of the House, then it gets sent over to the Senate. And then you start the process over again in the Senate. So it could take a while and eventually hopefully end up on the Governor’s desk and you hope he doesn’t veto it. It is a process and it takes a while but because our legislative session is so short, it moves very quickly.

Holly: Are there advocacy groups that are coming out against the bills that you’re in favor of?

Julia: I have not seen any advocacy groups coming out against the bills, the HB 567 was actually a joint effort, unlike several stakeholders that they’ve been working on this bill over the last two years since the last session. And so because they were all working on it together, there was nobody to come out against it. As far as TAFDA’s bills, we have not gotten any pushback from them. And then the other thing with the pandemic is that a lot of people are not showing up to testify. So this session is very different than last session. Last session, you’d have hearings going till midnight. Now they’re pretty much ending by five or six.

Holly: So are people I know they have given the opportunity to testify virtually. I actually have been asked to testify about a bill next Monday and would have to do it virtually. Are you finding that people are not taking advantage of the ability to testify virtually?

Julia: You know, I testified virtually on 682 last week and 682 was the AROF bill. I don’t know if you know what Arif is, but it’s the Administrative Review of Finding after CPS completes your investigation, that they make a finding of reason to believe they’ll send a letter to the parents stating that they have 45 days to appeal the finding. But sometimes those letters never arrive, they get lost. You know, parents don’t know about it, or they don’t read the letter or whatever. So HB 682, states that the department has to verbally notify the parents of the AROF review their right to a review. And they have to document in the file that they’ve notified the parents. So I did testify on that virtually. I froze up, they froze up. It was very frustrating. But eventually I think all my testimony got out. So I I’ll never do that again. I will never I won’t do that. Again. I will go up there if I need to testify, because it was just too difficult.

Holly: That’s good to know. So aside from the legislative angle, I know because this is how I got to know you in the first place that TAFDA can file amicus briefs in cases. I got to know Julia, because TAFDA files an amicus brief in our case of in re CJC when it was pending in the Texas Supreme Court. And I think it was really impactful because a brief had been filed on the other side and they were able to come in and kind of respond to that particular breed and the issues that it raised. So can you discuss the amicus process and how TAFDA decides to become involved in a case?

Julia: Sure, um, actually your your case was the first time you wrote an amicus brief, I had been contacted by, I think it was the Texas Public Policy Foundation was working with you. And they contacted us and asked us if we would submit an amicus and, and we thought it was a good issue because although you didn’t have an actual CPS case, it involved, you know, constitutional rights, that parent presumption, which is absolutely applicable in CPS cases, so that’s why we got involved. Since that time, we have been asked to write other amicus briefs. But we haven’t written any just because lack of time, lack of people. We have just formed an amicus committee, though. So we actually now do have an amicus committee. So maybe we can get more things done. But as you know, as a volunteer organization, you can only do as much as your volunteers are able to do so.

Holly: And I think there’s probably a lot of overlap between, you know, cases like CJC. I know there have been a couple of three that I’m aware of Court of Appeals cases post CJC, dealing with the fit parent presumption, and at least one of them, which is now currently pending in the Supreme Court was a CPS case. Two of them may have been. So are there other cases currently pending in the Texas Supreme Court that have CPS issues or parental issues that are going to tie in with CPS cases?

Julia: Sure. There’s one case was just argued, I believe was the end of February might have been the end of January as time flies so quickly, I have a hard time remembering but was was not that long ago. And that was in the interest of JFG. Was a case revolving around CPS, parental termination and incarceration where a parent had been incarcerated. In the past, I don’t even think he was incarcerated at the time of trial, but it was just in the past. And in CPS was using that prior incarceration against him as a reason to terminate his parental rights. So that’s obviously a very important issue. It’s gonna affect a lot of people because most I don’t want to put a percentage right on but I would say a lot of CPS parents have been in jail before. 

So you know, the issue is going to be, you know, what, how long do they need to be in jail? What were they in jail for? Did being in jail affect that child? What if the child hadn’t been born yet? You know, there’s a lot of questions that go into that. And there’s a another case, I don’t really want to call it a companion case, but it has similar issues. It was just filed recently. And that’s in re JRAM appealed from the 10th Court of Appeals, which not only addresses the incarceration, incarceration issue, but also issues of drug use, and the COVID extension orders. So that’s an that’s going to be interesting one, this is only one I’ve seen regarding the COVID extension orders. 

Another big case, that is pending right now is in the interest of LCL. And that is, comes out of the 14th Court of Appeals. That was an en banc opinion by the 14th Court of Appeals, where they CPS is likes to say they up ended decades of of case law, which I’m not so sure that that’s true. It well, it is true. Could be true. But it’s because that case law was mis was misinterpreting prior case law. So it was kind of like the domino effect. One case, misinterprets a case and then it just goes on and on and on and on. Yeah. So the 14th Court of Appeals is basically like, hey, we’re gonna fix this. Because somewhere along the line, we decided that a parent’s drug use just ment endangerment. And that’s not the case. The department has to show that there is a causal link between the parents drug use and harm to the child. Yeah, so that said, that’s a really big case. 

Because it’s going to affect again, most of these cases involve parents using drugs. And you know, to what extent, you know, to what, to what extent does it mean that a parent’s drug use means termination? I guess, for lack of a better word. Another case, actually the most recent case, and is actually one of our directors of TAFDA. Dennis Slate, this was his case in the 14th Court of Appeals, where he had it he was representing a client whose children were removed by the department on an emergency removal. And at the adversary hearing, the department could not prove that they’re that they use reasonable efforts to prevent the removal, which is one of the elements that they have to prove, in order for the court to sustain the removal. 

They couldn’t prove that and but the and they even testified that there were no reasonable efforts to that removal, because there were unexplained injuries to the child. And they wanted the father to confess to the crime, which he wouldn’t. And then that brings in, you know, Fifth Amendment implications, right. So, so it went up to the 14th. And the Court of Appeals reversed because they had not proven reasonable efforts to remove trial court sustain the removal, it went up to the 14, they reversed it. And the department filed petition for review with the Supreme Court and got in an emergency stay issued. So they didn’t have to return the child to the parents. And my understanding is that the department is arguing that they made reasonable efforts to prevent the removal by investigating the referral, which doesn’t make any sense, because they’re mandated by law to investigate all referrals.

Holly: So what would constitute reasonable efforts?

Julia: Well, the 14th Court of Appeal said, you know, there’s plenty of case law that says if the department issues with Family Service Plan, and has has a parent engaged in services, to rehabilitate them, so to speak, or to, you know, counsel them on why the child was removed, that would, that would be considered reasonable efforts. The department could have asked for the father to leave the home because they thought it was they thought the father was guilty. And he’s the one who inflicted the injuries. So they could have asked him to leave and the child has stayed home with the mom, you know, so there’s other things that they could have done, but they just didn’t do anything. Nothing.

Holly: I would think there are a lot of there’s a lot of overlap between what’s happening in the CPS cases that can tie into people that are handling just traditional family law cases. 

Julia: Sure.

Holly: It’s, you know, when you mentioned the drug use a little bit ago, I can see where, yes, that’s going to be an issue in CPS cases where you you need to have kind of a standard of what, what do we do? And how much drug use what does it mean, but I am seeing in regular family law cases as well, where we have drug use as an issue. And you know, what we deal with the issue of the fit parent presumption? Does drug use render you unfit? Does drug use years ago render you unfit? Where’s that line? I think that case you mentioned in the supreme court may give us some guidance about where that line should be both on the CPS side and in the non CPS Family Law context.

Julia: Exactly. And there’s a difference right between a custody fight between two parents who are alleging you know, one parent use drugs, and so they shouldn’t have as much visitation or supervisor or whatever. There’s a difference between that in the state coming in and taking children from parents because of those allegations.

Holly: We also have something kind of a little bit in between where we have non parents, grandparents or other relatives or even other third parties who have standing for one some reason or another, who are blaming a parent or both parents are unfit based on drug use. So for attorneys out there, you mentioned you have 80 something attorneys in TAFDA now, but I’m guessing there are many, many more attorneys out there who are involved in CPS work, how can they get involved? And what does it take to become involved in your organization?

Julia: So we have a website, www.TAFDA.net. And they can visit our website, they can learn all about us. And we have an online application. And we also have a page it’s Texas Association of Family Defense Lawyers page on Facebook. And we try to keep that updated. But again, you know, update as much as we can. But there’s information on that. And they can just contact us and submit questions or just fill out an application.

Holly: What’s the fee to become a member?

Julia: So we have different levels of membership. Based on you know, like we have a regular membership is $150. We have a associate membership, which would be like maybe somebody with a nonprofit organization, and that would be $75. And then we have like a new newly licensed attorney. Like I think it’s less than two years and I think that’s $50. And then if you’re over 70, it’s free because you get the seniority exemption. So there’s different levels, but that’s all outlined on the website.

Holly: So I’m curious if this is an issue TAFDA is dealing with or has considered dealing with. I know I used to do CPS appointments in a few counties. And one of the big reasons that I stopped was because certain judges would slash your time you couldn’t bill for travel time you might sit in court for four or five hours waiting for your hearing to be called, and you can only bill for one. And at the end of the day, the attorneys were getting paid a fraction of the time that they spent on the cases, which makes it hard to retain good attorneys to represent parents and children. Is that something you all have looked into at all?

Julia: Well, yes, I knew that we had there is case law that says that if the judge slashes your fee, then you file an appeal with the administrative, regional presiding judge of the of the region. And so yeah, no, there is case law on that. And I have done that before. And then I got paid everything that I asked for. So, you know, I don’t know that judges are really doing that so much anymore, but I don’t and I don’t know how recent your experience was, I know that some, obviously, it’s up to each county, what they want to pay their attorneys. There is a movement afoot by the children’s commission to somehow streamline and organize the appointment and payment of attorneys so that it’s more consistent across the state. 

But I don’t think that they were able to come up with any solution yet, because it’s such a large state, and they’re, they’re, you know, they’re looking at models and other states and how other states do it, but Texas is so big, that it’s um, it’s not really feasible to do what some other states are doing so, but we realize that, that that’s an issue. And that’s one of the reasons why the report that came out a couple of years ago, came out showing attorneys weren’t doing that good of a job. And and that’s exactly why because they’re not getting paid, which is not really a reason because if you do a job, you should do it, whether you’re getting paid or not, right. Otherwise, don’t do it.

Holly: Right. It is definitely puts puts attorneys in a tight spot, though, when they know, okay, this, the code says that I should be doing X, Y, or Z, or my training tells me I should be doing X, Y or Z to properly represent this child. But I know judge so and so is going to pay me for only doing x. And then I have to, 

Julia: I think in that instance, what I would do is I would do the job and then a judge so and so didn’t pay me then I would appeal it and let judge so and so explain why you didn’t deserve to be paid. 

Holly: And the other issue I would see is, and this is more recent, I know, like Denton County, for example, doesn’t pay until the case is over. And so there are attorneys who can represent, especially children for years, and they’re not actually going to get paid until the case is closed out. Whereas other counties pay out monthly or on a very regular basis. So it definitely seems like some sort of uniformity would be really helpful in that area.

Julia: Yeah, Galveston county pays out whenever you submit a bill, they don’t make us wait till the end of the case. So I you know, I think that would just be a matter of going to the judge, you know, and the, you know, the attorneys probably just need to get together and go to the judge and talk to the judge and say, look, you know, we really need to get paid more than once a year or whatever.

Holly: So if you had any advice to give to or one piece of advice to give to young lawyers who are interested in getting into CPS litigation, representing parents representing children, what would that advice be?

Julia: I would say that, you know, this is a very unique area of the law, it is not a bread and butter case, it is this is not the kind of case to take just because you’re needing to eat, which sometimes we you know, some people call uncontested divorces, bread and butter, because they’re pretty easy, right? That these are not easy cases, you really need to have a heart to work with the parents, and or the children. And you really need to take CLE. This, the Supreme Court, children’s convention has like $25 CLEs on the State Bar website, you can get a lot of information from them. They have a lot of information on their website. TAFDA has a lot of information on our website. And it’s just really important to know and get a mentor if you can, maybe sit in on a few CPS, you know, trials and see what you’re up against before starting out, because they really are a lot of work. If you do them correctly.

Holly: They can also provide very valuable trial experience for a lot of attorneys because CPS I think tends to get to trials and jury trials a lot more frequently than traditional family cases.

Julia: Yes. But you want to remember again, that you’re dealing with parental rights. And that, you know, we call that the death penalty of civil law. If a parent’s rights get terminated. It’s it’s like getting the death penalty in a criminal case. So yes, you will, you will go to trial, but make sure you know what you’re doing before you do that, which is why I suggested sitting on a couple of other ones and getting the experience.

Holly: Yes, that’s definitely a great advice, no matter what area of the law young litigators are interested in being involved in. See how it’s done. Well, I think we’re just about out of time, but I wanted to thank you so much for joining us today and helping our listeners learn a little bit about TAFDA and what it does and how to get involved and look forward to seeing what your organization does in the future.

Julia: I appreciate it, Holly. Thanks for inviting us.

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 www.draperfirm.com