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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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I accepted the fact that i smoked marijuana every once in a

Customer Question

i accepted the fact that i smoked marijuana every once in a while. I have shared custody of my 2year old son but cps came to my house investigating me being under the influence when i have my son. I have my sone at the most 3 days a week for 2hrs when he comes hime. I HAVE NEVER BEEN UNDER THE INFLUENCE WHILE AROUND MY SON. They asked me to take a drug test i refused, i was some what cooperative to some extent. I was furious the the situation and completely caught of gaurd that i asked for them to leave. Called them back after i cooled down and i accepted to take a drug test. Do i have to take the test if i already accepted the fact that i smoke? What should be my next step?
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

A few more minutes please. I'm looking into this for you.

Expert:  LegalGems replied 1 year ago.

This is direct from DFPS's website:

CPS only removes children when it is necessary to protect them from abuse or neglect. This happens when there are no reasonable efforts that will keep children safe in their homes. With a court order, CPS can remove children when they are unsafe and the family is unable to make the changes needed to keep them safe. Depending on what is going on with the family, CPS may get a court order to remove children or it may remove children before getting a court order.

If CPS removes your child from your care without a court order, the court will review the case the next working day. In all cases, a judge will schedule a hearing within two weeks after CPS removes a child. When CPS removes children it will ask the parents to complete a Child Caregiver Resource Form. This form gives CPS the names of at least three people, including grandparents and other adult relatives, who might provide care, emotional support, or other support for the child while the parents receive services.

So as you can see, the department cannot take children away without a court order unless there is an emergency.

Unfortunately, in custody disputes, it is not uncommon for a parent to call DFPS.

The department cannot compel a drug test (a verbal consent can later be revoked) absent a court order. However, if the parent refuses consent, and the department feels that there is any concern (and sometimes when no concern) they will proceed with attempting to secure a legal court order.

It can be analogized to a police officer requesting entrance to a home without a warrant; most attorneys will advise the homeowner to refuse the request until a warrant is obtained.

Here is more information on how the department conducts their proceedings: https://www.dfps.state.tx.us/Child_Protection/About_Child_Protective_Services/parentguide.asp - for example, parents can agree to a safety plan - this is entirely voluntary; it is best to have an attorney to oversee any communications to help avoid a party from waiving their rights or making incriminatory statements.

Expert:  LegalGems replied 1 year ago.

Similar to a request for a warrant, the department must show the judge good cause to get an order for drug testing; however, a verbal admission would typically lead a judge to order it upon request.

Expert:  LegalGems replied 1 year ago.

Please see below:

TIP: Court Order in Aid of Investigation The caseworker’s affidavit in support of a request for a Court Order In Aid of Investigation should detail the allegations of abuse or neglect, the evidence found to date, and the specific impediments to accessing the evidence in question. The affidavit must never name the reporter, but should include an indication of whether the reporter is a professional or private individual, the basis of the reporter's allegations, and whether the investigator has confirmed the reporter's identity and obtained any other information from the reporter or others corroborating the allegations. The caseworker’s statement should be thorough, objective, and as specific as possible. If the caseworker has obtained evidence or information that casts serious doubt on the credibility of the report, the caseworker should include this information in the affidavit, with an explanation of why, nonetheless, the caseworker believes there is good cause for issuance of the court order.

This is located in the attorney's guide to representing the department - located here:

https://www.dfps.state.tx.us/Child_Protection/Practice_Guide/Practice_Guide/Section_1_Before_Filing_Suit/Before_Filing_Suit.pdf

That gives an idea of what must be proven in court in order to obtain an order from the judge.

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