Mandatory Appointment of Attorney
Everyone who’s seen someone arrested on a cop show has heard the line, “you have the right to an attorney, if you cannot afford an attorney, one will be appointed for you.”
Did you know that the same is true in CPS cases? If CPS is seeking conservatorship or termination of parental rights, indigent parents must be appointed attorneys, if they want one, thanks to a new Texas law beginning September 1, 2013.
When Should I Request an Attorney?
Unfortunately, you do not have a right to a Court Appointed Attorney until CPS begins legal proceedings. You’ll probably find out about these proceedings when a Deputy or Process Server shows up at your door and hands you legal documents; aka, when you’ve been “served.”
DO NOT WAIT UNTIL YOUR COURT DATE! You need to act immediately in order to get an attorney before your first court date since that is likely one of the most important. However, if you appear at the Adversary Hearing, immediately inform the Court you are indigent, prove your indigence, and the Court will appoint an attorney and may delay the hearing for up to seven days to allow your attorney to prepare your defense.
What Does “Indigent” Mean?
In laymen’s terms, being indigent means that a person can’t afford to hire an attorney, and the Court requires more than just saying that you’d rather spend your money on other things.
Legally speaking, the test for indigence is when the evidence shows that you would be unable to pay costs if you really wanted to and made a good-faith effort to do so. You have the burden of proving that you would be unable to pay and that you made a good-faith effort to do so.
How to Prove You’re Indigent
You need to prepare an Affidavit of Indigence for the Court. Most Courts have their own Application that merely requires that you fill in the blanks. This application will ask about your monthly income, your monthly expenses, the amount in your bank accounts, and about assets you own. If you are on government assistance, this may be used to show that you are indigent.
If you have assets that can be sold, money in the bank, or if your income exceeds your expenses, then the Court is likely to find that you can afford to hire an attorney on your own.
You must show that you’ve made a reasonable attempt to get a loan or borrow the funds to hire an attorney. Be prepared to name the banks, friends, or family members that you have asked and how much that you are able to borrow (if any).
Also, you must show that you’ve made a reasonable attempt to hire an attorney on your own. Some attorneys will accept payment plans, or you may qualify at your local Legal Aid. Be prepared to list the attorneys that you spoke to, their phone numbers, and the reason you couldn’t hire them (e.g., wanted $3,000 retainer, wouldn’t agree to payment plan, etc.)
New Law Effective September 1, 2013
Previously, parents were only entitled to an Attorney if CPS was attempting to terminate the parental rights. You see, the U.S. Supreme Court has upheld that parents have a Constitutional Right to raise their children and when the Government (CPS) tries to interfere with that right, citizens have certain protections.
S.B. 1759 altered many sections of the Family Code pertaining to CPS cases, and requires appointment of an attorney for the parent even if the Government (CPS) is requesting conservatorship over the child. Basically, if CPS is attempting to remove your children from you, your Constitutional Rights are being infringed upon and you have a right to help.
—See S.B. 1759
Court Appointed Attorneys Aren’t That Good Though, Right?
This may surprise you, but in most counties the attorneys that are on the CPS Appointment List are on there voluntarily and not part of a Public Defenders Office.
In Lubbock, for example, the attorneys on the appointment list are private attorneys, who have their own law practices, and accept a deeply discounted fee from the County on CPS cases as a way of giving back to the public. These attorneys aren’t your “bottom of the barrel/can’t get other work/do CPS cases or starve” type of attorneys; they give CPS a run for their money.
However, you have no obligation to have an attorney at all. You have the Constitutional Right to represent yourself pro se if you so choose. If you choose not to request an attorney though, do not expect the Court to provide any leniency when it comes to the Texas Rules of Evidence, Texas Rules of Civil Procedure, or the Texas Rules of Appellate Procedure.
What Can a Court Appointed Lawyer Do For Me?
A court appointed attorney in a CPS case can provide you with invaluable assistance. However, having an attorney doesn’t mean that they are going to do everything for you. Your attorney is probably going to give you homework assignments and instruct you to gather certain documents for him/her to give you the greater chance of success in Court.
The Texas Family Code even sets out specific duties for appointed attorneys in CPS cases. The law says that the attorney must interview the parties to the suit, the parents, and other persons who have significant knowledge of the case.
The attorney must: investigate the facts of the case; meet with the parent before each hearing; take any action consistent with the parent’s objectives; abide by the parent’s objectives for representation; conduct formal discovery when necessary; and receive annual specialized legal education for representing parents in CPS cases.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Family Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479