Your Right to a Lawyer in a Texas CPS Case

The short answer

Texas law requires a court to appoint a lawyer, called an attorney ad litem, for a parent in the two kinds of DFPS court cases covered on this page. In a DFPS suit asking to end parental rights or to name a conservator for a child, the court must appoint one for a parent who is indigent and responds in opposition Tex. Fam. Code §107.013(a). In a suit asking the court to order a parent into services, the court must appoint one for that parent right after the filing and before the hearing Tex. Fam. Code §264.203(h). You can also hire your own lawyer at any time if you can afford one TexasLawHelp.org, "I want help and information on dealing with Child Protective Services".

What is an attorney ad litem, and what must it do?

An attorney ad litem is a lawyer who provides legal services to a person and owes that person "the duties of undivided loyalty, confidentiality, and competent representation" Tex. Fam. Code §107.001. For a parent in a CPS case, it is a court-appointed lawyer who represents the parent's interests Tex. Fam. Code §107.013(a).

A parent's attorney ad litem must, among other duties Tex. Fam. Code §107.0131:

• interview the parent within a reasonable time after being appointed, unless the parent's location is unknown;
• investigate the facts of the case;
• meet with the parent before each court hearing, unless the court finds good cause why that is not feasible or, for good cause, allows a phone or video conference instead;
• review and sign, or decline to sign, a proposed or agreed order affecting the parent; and
• abide by the parent's objectives for representation.

The lawyer is also entitled to take part in DFPS case staffings (meetings) that the parent is invited to, such as a staffing to develop a family plan of service Tex. Fam. Code §107.0131. In a services case, the parent's attorney ad litem has these same powers and duties Tex. Fam. Code §264.203(h).

When must the court appoint a lawyer for a parent?

In a suit filed by a governmental entity, such as DFPS, that asks to terminate the parent-child relationship or to appoint a conservator for a child, the court must appoint an attorney ad litem for Tex. Fam. Code §107.013(a):

• an indigent parent of the child who responds in opposition;
• a parent who was served notice of the suit by publication; and
• certain alleged fathers whose identity or location is unknown or who could not be personally served.

Being indigent generally means you have a low income and cannot afford a lawyer. Responding in opposition means you go to court and show that you are going to fight the CPS petition TexasLawHelp.org, "I want help and information on dealing with Child Protective Services".

If you do not have a lawyer at your first court appearance, the court must tell you about your right to a lawyer and, if you are indigent and oppose the suit, your right to a court-appointed one Tex. Fam. Code §107.013(a-1).

To claim indigence, you file an affidavit of indigence (a sworn statement about your finances) before the court holds a hearing on it. The court may look at your income, assets, property, public benefits, debts, necessary expenses, and the number and ages of your dependents Tex. Fam. Code §107.013(d). Once found indigent, you are presumed to stay indigent for the whole suit and any appeal, unless the court later finds a material and substantial change in your finances Tex. Fam. Code §107.013(e).

If both parents qualify, their interests do not conflict, and there is no history or pattern of family violence by one parent against the other parent, a spouse, or a child of the parties, the court may appoint one lawyer for both Tex. Fam. Code §107.013(b).

Can I have a lawyer before there is a court case?

Yes, if you hire one. You can talk to and hire a lawyer at any time, including during the investigation, if you can afford one. TexasLawHelp.org explains that you are not entitled to a court-appointed lawyer during a CPS investigation TexasLawHelp.org, "I want help and information on dealing with Child Protective Services".

At its first contact in an investigation, DFPS must give you a written summary that includes your right to seek legal counsel Tex. Fam. Code §261.307(a). It must also tell you out loud about your right to a court-appointed attorney if you are indigent, you are the child's parent, and DFPS seeks certain court orders, including an order requiring you to take part in services under §264.203 Tex. Fam. Code §261.307(a).

Do I get a lawyer in a court-ordered services case?

Yes. When DFPS files a suit asking the court to order a parent into services, the court must appoint an attorney ad litem for that parent immediately after the filing and before the hearing Tex. Fam. Code §264.203(h). The court must also appoint one for the child Tex. Fam. Code §264.203(g).

Before the hearing begins, the court must tell each parent about the right to a lawyer and, for a parent who is indigent and opposes the request, the right to a court-appointed lawyer Tex. Fam. Code §264.203(i). If you claim indigence, you must complete and file an affidavit of indigence. Then Tex. Fam. Code §264.203(j):

• if the court finds you indigent, the appointed lawyer may continue representing you;
• if the court finds you are not indigent, it must discharge the lawyer after the hearing and order you to pay the cost of that lawyer's work.

After a discharge, the court may, for good cause, postpone later proceedings for up to seven days so you can hire a lawyer or give your lawyer time to prepare Tex. Fam. Code §264.203(k). The full process is in Court-Ordered Services in Texas CPS Cases (Family Code §264.203).

Who pays for an appointed lawyer?

Under Chapter 107 of the Family Code, an attorney ad litem appointed for a parent is entitled to reasonable fees and expenses set by the court, to be paid by the parents unless the parents are indigent Tex. Fam. Code §107.015(a). If the parents' indigency is shown, an attorney ad litem appointed for a parent or child in a suit filed by a governmental entity is paid from the county's general funds under a set fee schedule Tex. Fam. Code §107.015(c). In a services case, a parent the court finds not indigent is ordered to pay the cost of the attorney ad litem's work Tex. Fam. Code §264.203(j).

Where can I find free or low-cost legal help?

These statewide resources come from TexasLawHelp.org, a program of the nonprofit Texas Legal Services Center TexasLawHelp.org, "Child Protective Services (CPS)", and from the State Bar of Texas:

• Legal aid directory. TexasLawHelp.org's Legal Help Directory helps you find legal aid organizations serving your area TexasLawHelp.org, "Legal Help Directory". Each organization has its own eligibility rules. A common one is household income below 125% (and sometimes 200%) of the Federal Poverty Guidelines. Qualifying does not mean an organization will automatically take your case TexasLawHelp.org, "Qualifying for Legal Aid".
• Family Helpline. TexasLawHelp.org lists the Texas Legal Services Center Family Helpline at 844-888-6565 for free legal information and education about DFPS issues TexasLawHelp.org, "I want help and information on dealing with Child Protective Services" TexasLawHelp.org, "Child Protective Services (CPS)".
• LiveChat and Texas Free Legal Answers. TexasLawHelp.org's LiveChat lets you chat for free with a Texas-licensed lawyer, Monday through Thursday, 10 AM to 2 PM. Legal advice there is only for people who qualify. On Texas Free Legal Answers, Texans with low or modest incomes can post a question, and a pro bono (free) attorney answers by email TexasLawHelp.org, "Ask a Question".
• State Bar of Texas Lawyer Referral & Information Service (LRIS). For every county except Bexar, Dallas, Harris, Jefferson, Travis, and Tarrant, call (800) 252-9690 (toll free), Monday through Friday, 8:30 a.m. to 4:30 p.m. CST. For those six counties, the State Bar points you to its Certified Lawyer Referral Services in Texas page for local contact information. A referred lawyer gives up to a 30-minute consultation for no more than $20. After that, expect to pay a reasonable fee if you hire the lawyer. The LRIS is a referral service, and its staff cannot give legal advice. It says it has no participating attorneys who offer free or reduced-fee help, and it points people who need free or low-cost help to TexasLawHelp.org State Bar of Texas, "Lawyer Referral & Information Service".

What the law says

In a suit filed by a governmental entity under Subtitle E in which termination of the parent-child relationship or the appointment of a conservator for a child is requested, the court shall appoint an attorney ad litem to represent the interests of: (1) an indigent parent of the child who responds in opposition to the termination or appointment; (2) a parent served by citation by publication; (3) an alleged father who failed to register with the registry under Chapter 160 and whose identity or location is unknown; and (4) an alleged father who registered with the paternity registry under Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.

In plain words: in a DFPS suit to end parental rights or name a conservator, an indigent parent who opposes the suit gets a court-appointed lawyer.

The court shall appoint an attorney ad litem to represent the interests of a parent for whom participation in services is being requested immediately after the filing but before the hearing to ensure adequate representation of the parent. The attorney ad litem for the parent shall have the powers and duties of an attorney ad litem for a parent under Section 107.0131 .

In plain words: in a services case, the court appoints a lawyer for the parent right away, before the hearing.

Questions to ask a lawyer

• Do I qualify as indigent, and what should go in my affidavit of indigence?
• When will we meet before each hearing?
• Will you attend DFPS staffings, such as the meeting to build my family plan of service?
• If the court finds I am not indigent, what will I owe, and when?
• Can one lawyer represent both parents in my case, or do we need separate lawyers?

Related

• Court-Ordered Services in Texas CPS Cases (Family Code §264.203)
• Family-Based Safety Services (FBSS) in Texas: What Families Should Know
• Your Rights When Texas CPS Contacts You (Family Code §261.307)
• The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302)
• Parker County and Weatherford, Texas: CPS and Family Courts, Court Records, DFPS Office and Free Legal Help