CPS Parent Resource Guide Cover

CPS Parent Resource Guide Part 13: Disability and Inability to Care 1

Part 1 and 2 of this section will handle those particular CPS issues, which include special topics. Special topics are but are not limited to: parents who have special physical or intellectual needs or who live with a mental illness; Fathers, especially fathers who don’t see their children, teenage parents, or parents who are in prison may also have questions specific to their situation. This section includes information to address these more individual issues.

A. Parents with Disabilities or Special Needs

It is important to be aware of whether you are a parent with a disability or special need because The Americans With Disabilities Act (ADA) applies to CPS cases. Temporary conditions, such as a broken leg, usually are not covered. Additionally, any condition relating from the abuse of drugs or alcohol is not covered.

The ADA defines a disability as a condition that “substantially limits a major life activity.” The ADA does not give a list of all the possible disabilities or special needs. Instead, the law covers “physical or mental impairment that substantially limits one or more major life activities.”

If you know (or think) you have a disability or special need, then you need to tell your lawyer so she can tell CPS and the court.

Examples of disabilities that may be protected by the ADA are: psychiatric or mental impairments such as depression or post-traumatic stress disorder, Back or spinal injury, migraine headaches, epilepsy, diabetes, vision and hearing impairments.

What Does it Mean for Your Case?

It is true that CPS is more likely to get involved with parents with disabilities or special needs since CPS workers must take reasonable steps to make sure that parents understand what is going on in their case. This is especially true for parents with special needs who may require “accommodations.” Accommodations are services that give special need parents the same chance as any other parent. Additionally, the ADA requires that CPS and the court make whatever modifications are needed to allow you to fully participate in your case, including court hearings, mediation, visitation, and servies.

Since CPS workers are more likely to get involved with special needs parents, it also means that parents of special needs are more likely to have their children taken away. To avoid this happening: you need to prove to CPS that you can keep your children safe, even if you do things a little differently than other parents. Think about ways that your disability might benefit your children – teaching them patience or independence, for example, rather than something that needs to be fixed or overcome. In each case, it is between you and your lawyer to convince CPS of your parenting abilities. Focus on the positives and your ability to be a safe parent!
What if CPS Says You Are “Unable” To Care For Your Child?

Cases in which CPS determines you unable to care for your child are called “Inability to Care” cases (ITC). CPS can argue ITC in any case ranging from bipolar disorder, depression, to a severe intellectual disability. CPS has the burden of proving the following to establish an ITC case:
CPS has been caring for the child at least 6 months
CPS has made reasonable efforts to return your child
It appears you will not be better and able to care for your child before the child turns 18
You cannot care for the child’s physical, emotional, and mental needs
Terminating your parental rights is in the child’s best interest


Remember! In every ITC case, you have the right to a lawyer as soon as CPS files its petition in court. Under Texas law, the CPS case cannot continue until the parent is given a lawyer.

B. Non-Offending Parents

These parents are named in the petition only because they are one of the child’s parents. Non-offending parents are sometimes named in the CPS petition, but are not suspected of having abused or neglected their children. As a non-offending parent, you have all the same rights as any other parent named in the petition. To protect your rights, it is highly advised that you attend all court hearings and do everything that CPS tells you.

Get involved! If you don’t get involved, and the court ends up terminating the offending parent’s rights, your parental rights may also be terminated and you will no longer have a legal relationship with your child.

Your child may be able to live with you or one of your relatives during the CPS case. You may even be able to ask for custody of the child. If you know that a CPS case involving your child is going on but you have not heard anything from the court, let CPS know that you want to be involved!

C. Fathers

Under Texas law, a child can only have one legal father. Being a child’s legal father brings both rights and responsibilities. A legal father has the right to make certain decisions about his child and to see his child, but he also is responsible to help pay for his child’s care. A legal father can also leave benefits to his child, such as inheritance, Social Security, insurance, and veteran’s benefits.

If the parents are not married when a baby is born, the father’s name is NOT put on the birth certificate unless the parents do something to show the man is the child’s legal father or, in other words, establish paternity. The parents must do one of the following:

• Sign a form called an Acknowledgment of Paternity (AOP) and file it with the

State Vital Statistics Unit at the Department of State Health Services

• Go to the Child Support Office and sign an Agreed Order establishing paternity

and setting a child support amount

• File a Paternity Petition in court, asking that an alleged father be named the

legal father

• If you are in court, ask the judge to order a paternity test

What if You Are Named as an “Alleged Father” in a CPS petition?

This situation can happen if the man is not romantically involved with the woman and does not know a baby was born, whether or not that was because of the woman’s choice. An “alleged father” is a man who the mother thinks could be the biological father of her child.

When you are named as the “alleged father,” CPS will conduct DNA testing to determine that you are in actually the father before making you part of the CPS case. To find out if you are the biological father, the judge will order a simple test (a DNA test) where samples of spit are taken from your mouth, the child’s mouth, and the mother’s mouth. Each of the samples are compared to determine if your DNA is a match with the child. If you are not the biological father, you will not be part of the CPS case. In some cases this can get complicated and it is advisable to talk to a lawyer, such as when you’re named as the “legal father,” and there you will need to convince the court by DNA testing or some other evidence that proves you are not the father.

In Texas, the court must appoint you a lawyer if you cannot afford to pay for one yourself and you are the legal father. The court will also appoint a lawyer if you are an alleged father to make sure that CPS does everything it needs to try to find you. If a DNA test is needed to establish paternity, you will not get a court-appointed lawyer to assist in a CPS case unless the DNA results show you are the biological father.

To find out more about establishing paternity, you can contact the Vital Statistics Unit at the Department of State Heath at 1-888-963-7111 or the Office of the Attorney General at 1-800-252-8011 or www.oag.state.tx.us.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at attorney@okohlaw.us

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One thought on “CPS Parent Resource Guide Part 13: Disability and Inability to Care

  • James Hill

    If cps has temporary custody of a child and a alleged uncle wants to find out if he’s really the kid’s uncle and ask cps for a DNA test from the kid do cps need the parent permission before a test is administered. The boy being 14