Abilene, TX asked in Criminal Law, Family Law, Child Custody and Civil Litigation for Texas

Q: How can the District Attorney reject a case, but CPS found a “reason to believe” the incident occurred?

6 months ago my sister was watching my son while I was at work. My son’s father arrived unannounced to pick him up (we didn’t have a custody agreement at that time). My sister didn’t know who was at the front door and grabbed my son from leaving. His dad called the cops and accused my sister of choking him. The police came out and didn’t arrest my sister. The officer stated in the report that she “didn’t have intent to injure my son”. The case was ultimately rejected by the DA. CPS did an investigation and found “reason to believe” the incident occurred. I have 45 days to challenge the finding.

1 Lawyer Answer
Kiele Linroth Pace
Kiele Linroth Pace
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: The DA's decision not to prosecute your sister for a crime doesn't determine the outcome of the CPS case because the two agencies have different roles and different perspectives. To prove a crime, the DA's office would need to show that your sister acted with malicious intent or reckless disregard for your son's safety. Furthermore, Texas law explicitly allows the use of force against a child for discipline or to promote the child's welfare if the person using force is a parent, stepparent, or acting "in loco parentis" which your sister was doing as his aunt and babysitter. Finally, it is the duty of every prosecutor to "do justice" which that even if a law was broken the DA shouldn't seek an unjust conviction.

CPS plays by an entirely different set of rules. They could decide that there was negligent supervision even if no laws were broken. You should hire a local Family Law attorney who has experience actually fighting CPS. When you are searching around, don't just look for someone who "takes CPS cases" because that could be someone who takes court-appointed Ad Litem cases where they technically represent the child but often actually just rubber-stamp whatever CPS wants to do with the case. You need a lawyer who isn't afraid to push back against CPS.

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