CPS Criminal Investigation: Do You Need a Criminal Lawyer?

 It is not uncommon for a CPS investigation to occur at the same time a criminal investigation is taking place in Texas. This is especially true in cases involving allegations of child physical or sexual abuse or neglect.

In Texas, CPS is required, by law, to refer all reports of child abuse or neglect to the local police agency, which will then decide whether or not to also initiate a criminal investigation. Likewise, police are required to accompany CPS investigators responding to emergency reports of child abuse or neglect. So, police and CPS often work together.

While the criminal defense attorneys at Varghese Summersett are not dedicated CPS attorneys, we routinely advise clients on how to handle CPS inquiries from a criminal perspective. (And only a criminal perspective, so if you're looking for an attorney to defend you when you don't have a criminal investigation or case pending, look for a "CPS attorney" specifically.)

In this article, we will explain what happens during a potential CPS criminal investigation, answer some frequently asked questions, and explain your rights.

If you or a loved one is contacted by CPS and believe you are facing criminal charges, it is imperative to contact an experienced criminal defense attorney immediately.

The Texas Department of Family and Protective Services (DFPS) is the state agency tasked with protecting some of the state's most vulnerable residents, including children, the elderly, and disabled individuals. Under the DFPS umbrella is Child Protective Services (CPS), which investigates all reports of child physical and sexual abuse and neglect by parents, guardians, or other family or household members.

CPS investigators are not law enforcement officers, but they have the authority to interview families, children, witnesses, and the alleged perpetrator, as well as to access medical and school records. They can also request random drug screens and conduct home visits.

After completing their investigation, CPS will conduct a risk assessment and make a finding, or ruling, to determine whether there is enough evidence to substantiate the claim of abuse or neglect. If so, CPS will take action to protect the child, which may include:

• offering services to address the problem – i.e. parenting classes, food banks, etc.;
• implementing a safety plan that will allow the child to continue to live in the home as long as conditions are met and followed; or
• taking court action to remove the child from the home.

At the conclusion of a CPS investigation, the caseworker must issue a finding. Here are the possible outcomes:

1. Reason to Believe: If a CPS investigator makes a "reason to believe" finding, he or she determined that the abuse or neglect occurred. If this finding is made, there is a strong possibility that law enforcement will also be involved.
2. Ruled Out: If a CPS investigator makes a "ruled out" finding, he or she does not believe that abuse or neglect occurred.
3. Unable to Complete: "Unable to complete" is when a report or referral is made to CPS, but the agency couldn't complete the investigation. This usually occurs when CPS can't locate the family or the family was uncooperative.
4. Unable to Determine: This finding means CPS cannot make a decision. This is rare.
5. Administrative Closure: This finding means CPS closed the case for some reason other than those outlined above.

If CPS believes a crime has been committed, they will immediately notify law enforcement, which will launch an independent investigation. This criminal investigation will then run concurrently with the CPS investigation. Depending on the severity of the allegations, this could result in an arrest and charges being filed against the alleged abuser.

If you are facing a CPS criminal investigation, it is important to have an experienced attorney advise you of your rights and help you navigate the complex legal system.

While CPS and law enforcement share the common goal of protecting children, their investigations are quite different. A CPS investigation determines whether a child is safe in his or her home or if the child should be removed. A criminal investigation determines whether a crime has occurred and if someone should be criminally prosecuted.

A CPS investigation is conducted by an investigator or caseworker with Child Protective Services. It's important to understand that CPS is driven by a "preponderance of evidence" standard. This is a lower standard than what law enforcement must meet. All that is required is that, when all the evidence is weighed, it is more likely than not abuse or neglect occurred.

As a result, almost every CPS investigation that is running concurrent to a criminal investigation results in a "reason to believe" finding. Again, this means CPS believes it is more likely than not that abuse occurred. From CPS perspective, the case agent would almost always rather find a "reason to believe" than risk sending a child back into a situation where they could be harmed.

A criminal investigation, on the other hand, is conducted by law enforcement to determine whether there is enough evidence to arrest and charge an individual with a crime. In order for charges to be filed, law enforcement must have probable cause to believe a crime was committed. This is a much higher standard than a "preponderance of evidence."

As a result, there are many CPS investigations where neglect is found by CPS and the family is offered services to address the problem or a child is removed from a home, but no charges are filed. In order for charges to be filed, law enforcement must believe they can prove a crime occurred beyond a reasonable doubt. This is a very high standard, and one that can be difficult to meet.

At the conclusion of a CPS investigation, the target of inquiry will receive a decision letter from CPS. If the agency made a "reason to believe" finding, the alleged perpetrator has the right, under Section 261.309 of the Texas Family Code, to request an Administrative Review of Investigation Findings (ARIF).

The ARIF gives the alleged perpetrator the opportunity to challenge CPS findings. This is an informal process; it does not involve a trial or include any testimony. However, the requestor is required to say why they are disputing the matter – statements that are often used by detectives and law enforcement in a criminal investigation.

These reviews are not evidentiary – in other words, it's not someone looking to see if the case is solid or not. It is just an internal review to see if the investigator followed the normal procedure and checked all the standard boxes.

Additionally, if the alleged perpetrator has a concurrent criminal case, the prosecutor has the ability to halt the review until the case is over. Likewise, CPS can postpone the review on its own based on the fact that there is an ongoing criminal investigation.

If you or a loved one is the subject of a CPS criminal investigation, it's important to understand your rights. Here's an overview:

• Because a CPS investigation can lead to criminal charges, you have the right to have a lawyer to intervene on your behalf and be present during home visits and legal proceedings;
• You have the right to remain silent. You can invoke your fifth amendment right to remain silent during a CPS and/or criminal investigation;
• You can refuse to allow CPS or police in your house – unless they have a warrant or the investigator believes a child is in imminent danger.