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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 118699
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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My niece lost custody of her 2 children b/c of suspected sexual

Customer Question

My niece lost custody of her 2 children b/c of suspected sexual abuse in January 2011. The kids were placed in the care of her aunt intil 09/28/11. They had a court appearance on that date and the judge ordered CPS to remove the children from her custody b/c they were in immediate danger. The danger according to the judge is the fact that her brother (my niece's father & brother to the aunt) has a criminal record of 2 counts of sexual assault and was on parole.
I have read the affidavit submitted by CPS and copies of the "judgement of guilt" and the "judgement of sentence" for him (my niece's father) today. Through out the affidavit it states the he was convicted twice, once for sexual assault and the second time for burglary of habitation with intent to commit sexual assault. They have it all wrong. He was convicted of attempted rape of a child (17 yr. old) in 1983 and was sentenced to 8 years of probation. In 1989 he was convicted of "criminal trespass of a habitation", leading him to break his probation, then was sentenced to four years in the Tx Dept of Corrections. To date, they still have no proof of anyone that could have abused the 10 month old (now 18 months). The judge even made a comment to CPS stating that a vaginal drawing is not proof of anything. No DNA was ever taken, no swabs, nothing from the infant. The only thing keeping the children away is the statement from the SANE. CPS has ordered my niece's dad to stay away from the children since January 2011, he is not allowed to see them at all. What can he do to get his grandparents rights back? What can my niece's aunt do to regain temporary custody of the children?
Submitted: 6 years ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 6 years ago.
I would hope he has an attorney by now. The issue is CPS is very well known for having the reputation of being a malicious, negligent and abusive agency, so it does not surprise me that they had either mistakes or outright lies in their affidavit. His attorney needs to be challenging the statements in the affidavit by presenting actual evidence to the court, BUT the problem is that he does have a sex offense on his record and he does have a burglary type crime, so the court can consider this to be "harmless" misrepresentations because it would not make a difference in the decision. The lack of evidence on the other hand is a bit different and he needs to present some evidence on his behalf showing they have not met their burden of proof against him with these allegations.

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