Cheney, Fernandez & Associates, P.C.

My Niece is accusing me of rape!!

You notice that everyone in the family is suddenly avoiding you… and then you receive a call from a detective wanted to go over some allegations.  During the call you learn that your niece is claiming that you sexually assaulted her two years ago.  After the call, the think to yourself, “this can’t be right… the only evidence is her statement.”  You hope that once the detective realizes that his only evidence is your niece’s statement…. that the charges will just go away.  When your name appears in the next month’s list of indictments in the newspaper, you suddenly realize that the charges not going away...and instead, are proceeding forward in the worst way possible. 

This is a common situation for many people accused of any type of sexual offense.  Even though many juries prefer some type of DNA or forensic evidence, the law does not require the State to produce this type of evidence in order to convict you.  If the child testifies and the jury believes the child “beyond a reasonable doubt” then a defendant can be convicted of sexual offense.  If the jury does not believe the child and the only evidence is the child’s testimony, then a jury cannot convict the defendant.  A variety of minor details can sway a jury.  Before talking to an officer or detective, a person accused of any sexual offense should visit with a criminal defense attorney to understand and factors that could influence their case. 

*This is not a substitute for legal advice.  Any person accused of a crime should consult with an attorney for more information specific to their case.

The Cops Took My Stuff!!


You were at home and minding your own business… when the police come with a search warrant for you home.  During the search, the police start hauling out anything of value including televisions, cash, and the first motorcycle you purchased in high school.  A couple of days later, you are served with paperwork telling you that your property was seized by the State as alleged proceeds of drug dealing.  The paperwork also tells you that you have 20 days to answer… so you call the officer and ask him/her if you have to do anything.  They tell you that you don’t have to do anything…. But conveniently forget to tell you that if you do nothing, then you will lose all of your property by default.

What you have actually been served with is a notice of seizure.  The State is required to give you this notice if they intend to keep your stuff.  The rules of civil procedure apply to these types of seizure.  This means that if you do not file an answer by the end of 20 days, then a default judgment can be entered against you without any other hearings or notice.  A default judgment is what the name implies—a judgment that happens because you failed to file an answer. 

Even though seizures are civil matters, you should visit with a criminal attorney before filing an answer to decide if you should file one or not.  Once you file an answer, then the State could file additional motions against you.  A criminal attorney can help you decide whether or not filing an answer will save your stuff or expose you to further criminal liability.

*This is not a substitute for legal advice.  Any person accused of a crime should consult with an attorney for more information specific to their case.

CPS:  With Friends like this……Who needs enemies?

There is a children’s movie called “Bugs Life” that features a dysfunctional ant named “Flick” who is constantly causing problems for the colony, despite his best intentions.  Early in the movie, one ant tells Flick, “Help…. Don’t help.”  When I think of CPS, that statement constantly comes to mind:  more families would probably be helped if CPS didn’t help.  The organization that most people know as “CPS” is now actually the Department of Family and Protective Services.  A few years ago, they changed the name which I suspect was to make it a bit more “family friendly” sounding.  Despite the name change, they have still struggled with public perception issues as an organization that consistently fails in its general objectives to protect children and reunify families.

Historically, concerns raised by attorneys and litigants about the conduct of CPS workers or their policies were overshadowed or dismissed by the general attitude toward CPS in the judicial system that workers were honest, competent, or sufficiently staffed to respond appropriately to the needs of children affected by CPS investigations.  Below this blog is a copy an opinion by Janis Graham Jack, Senior United States District Judge, published on December 17, 2015.  Throughout her 255 page opinion, she documents the historical and current state of the Texas CPS system.  Through this opinion, the judiciary formally recognized that the CPS system in Texas is broken.  Her findings included:

            “Texas’s foster care system is broken and it has been that way for decades.”

“….foster children often age out of care more damaged than when they entered.”

            That “the DFPS’s disregard of investigations, child-on-child abuse, enforcement, and appropriate staffing levels show that DFPS substantially departs from professional judgment toward RCCL operations.”

            “It also appears that a corollary of inappropriate placement is overmedication.”

These are frightening findings for a system that the legislator initially intended to protect children.  Despite concerns about the system, many parents in custody disputes attempt to use CPS as a tool to get a “leg up” in their custody dispute.  Before calling CPS, any parent that cares about the safety and well-being of their children should consider whether or not their child is truly at risk of harm.  We have met more than one parent that called CPS to report abuse by the other parent, only to find themselves being investigated by CPS and their children subject to removal into a tragically damaged foster care system.   If you suspect that your child has been injured by the other parent, the first phone call should be to a doctor to determine if the injuries are serious.  If the doctor determines that the injuries are concerning, the doctor has a mandatory duty to report the event to CPS and/or law enforcement.  From there, you will have at least one professional, i.e. the doctor, that is willing and able to look at your situation professionally and objectively… even if CPS does enter the picture.

Maybe one day, CPS will be like Flick in the little “Bugs Life” movie and get it together.  Justice Janis Jack has appointed a Special Master to make recommendations to improve the CPS system in Texas.  But until then, help yourself by cautiously CPS for help unless it is really required or needed.  Calling CPS to simply inflame a custody fight is never a clever move considering the substantial risk to your children.  This opinion by Justice Janis Jack punctuates the risk to your children.  If you are concerned about your children, but it doesn’t rise to the level of a CPS investigation, you still have options to safely protect your children.  These options could include protective orders, restraining orders, random drug testing through the divorce court, and court ordered family counseling.  More and more jurisdictions are offering programs for families that are struggling through the process of finalizing custody disputes outside of the CPS system.  Visit with an attorney in your jurisdiction to learn what options are available in your jurisdiction and within the Family Code to help your children without subjecting them to foster care abuse.