Date: Friday May 15, :22 From:

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1 Date: Friday May 15, :22 From: Defendant brought down to LE investigation room. defendant is not read his rights. Defendant makes incriminating statements. State will not use these specific statements. However, CPS walks in immediately after and Defendant makes additional yet similar incriminating statements. Officer obtains warrant and places Defendant under arrest. The state will attempt to use these incriminating statements during the course of trial. Courts have held that when the path of CPS investigator and police converge and they are investigating A criminal offense in tandem Miranda warnings and compliance may be necessary. Cates, 776 SW2d 172. Any other helpful cases to make this argument work? Date: Friday May 15, :31 From: Paul@pstuckle.com Depending on the nature of the offense the family code has statutory authority for cps and law enforcement to conduct "joint investigations", i.e. they are both agents of each other and the same entity. Date: Friday May 15, :46 From: georgecroland@gmail.com Texas Family Code has some interesting language regarding the role of CPS. Specifically, CPS shall, in consultation with the appropriate law enforcement agencies, develop guidelines and protocols for joint investigations by the department and the law enforcement agency under Section < (TX FAM CODE s ) Further, (b) states that CPS MUST be trained on information on interviewing techniques, evidence gathering, and testifying in court for criminal investigations, as well as *instruction on rights provided by the Fourth Amendment to the United States Constitution*. The interaction between CPS and the cops is termed a collaboration in that section of the code. George Roland Date: Saturday May 30, :01 Has anyone every filed a Motion to Supress on statements made to a CPS Investigator and/or a criminal investigator in the context of a CPS Adversary hearing, if client parent has not been advised of his or her Miranda Rights? Date: Saturday May 30, :38 From: wwolf711@aol.com check Clark v Ohio now pending in the US Supreme Court

2 argued, decision pending warren Date: Saturday May 30, :19 Danna, I have a real interest in this issue. I recently researched it in the context of a DPS adversarial hearing. The caseworker was unavailable for the hearing [meaning she elected to attend another hearing elsewhere ] so her boss cornered my client outside the courtroom before the hearing and elicited information from him she used to make the State s case in the ensuing hearing. I objected and the judge not only denied it and admitted the info so gained he refused to hear my offer of proof when I crossed her and the court refused to hear evidence about what she had done. I demanded he remove me instanter from his appointment and we shouted at each other for awhile on the record. I am unable to find cases to the effect a CPS caseworker cannot iview a represented parent w/o Mirander and waiver of counsel and use the fruits of the iview in the CPS case. What I have found is Blanton v. State, 172 P.3d 207 [2007] out of the OK Ct. Crim.App. But it isn t what we need: this case rules statements made to caseworkers in a parallel OK DHS investigation cannot be used in the criminal case. I think you are interested in the admissibility of such statements in the CPS case, as am I. I was unaware of the language Roland cites and will try to put it to use in this context. If you find something please share it. I m pretty pissed off about the Jake leg way these CPS hearings are run. Don Haslam, Paris Date: Saturday May 30, :11 From: wood_0801@hotmail.com check out dfps v gates- i believe 2004 Date: Saturday May 30, :46 Cite anyone? Date: Saturday May 30, :58 From: wood_0801@hotmail.com Jul 28, FindLaw provides GATES v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, No , July 28, US 5th...names reversed - my bad Date: Saturday May 30, :30 I'm not finding anything in gates that speaks to the issued described in this thread.

3 Date: Saturday May 30, :46 From: The 5th Circuit case that firmly established that the 4th Amendment limits certain actions by and applies to CPS workers is Roe v. TDPRS, 299 F.3d 395 (5th Cir. 2002). Michael Mowla Date: Saturday May 30, :52 More specifically, I have a CPS client mother who was interviewed by both the CPS Investigator and the criminal investigator without counsel and CPS is saying that my client said her daughter told her two years ago (about the same time she lost her son in a drunk driving accident) that her husband (stepfather of the daughter) he was sexually abusing her. My client says that she never said that. She said that IF her daughter ever said anything like that, she sure doesn't remember it. I have been told that the daughter is not saying that she ever told her mom until the day it was reported here recently. They say they have a tape of her saying this. My problem is that if mom testifies and it is on tape, then they can use her sworn testimony against her in possible criminal case like failure to report or something way worse. I have never seen a MTS filed in a civil case, but I sure think they should mirandize a person facing possible criminal charges. Date: Saturday May 30, :53 Thanks. Michael. Date: Saturday May 30, :22 From: stevegreenatty@earthlink.net Was she in "custody" when she gave the alleged statement? Steve Green Date: Sunday May 31, :17 From: whitecollarlaw@gmail.com Your case is Gates out of the 5th Circuit Cynthia Eva Hujar Orr Date: Monday June 1, :47 From: tragland@hot.rr.com The Fourth Amendment may apply in some civil matters. Take a look at Sodal v. Cook County, Ill., 506 U.S. 56; 113 S.Ct. 538 (1992) and see if it leads you to something helpful. tom ragland

4 Date: Monday June 1, :16 She was not in custody. Rarely are parents in custody when the interrogate them. Date: Monday June 1, :52 From: Look at the following cases: Berry v. State, 233 S.W.3d 847< oi=scholarr> (Tex. Crim. App. 2007) Capital murder -- death. Affirmed as reformed. 1. Confession -- CPS (Child Protective Services) Worker A CPS foster-care supervisor interviewed Berry in jail after Berry was charged with capital murder. Berry had an infant daughter who was born after the death of the complainant who was in CPS care and her three other children needed "placement." When the prosecutor asked the supervisor what Berry said during their meeting, Defense Counsel objected to any "custodial statements made under questioning by the state" and requested a hearing on the admissibility of the statements. Outside the presence of the jury, the supervisor denied questioning Berry at the direction of law enforcement; that her purpose for interviewing Berry was "[t]o discuss the removal reasons, as well as to obtain information regarding the children's health, social and educational history, also to obtain social history from her regarding her family and to discuss possible options for relative placement." She needed to know if Berry s family had any knowledge of what she had done because there were family members who were willing to care for the children. She testified that "[i]n foster care we have limited contact as far as with law enforcement." She told Berry that she was not there to act on behalf of law enforcement. She did not give Berry Miranda warnings because she "was not there doing an investigation." After hearing her testimony, the trial court made findings that Berry s statements were made freely and voluntarily; that Berry was in custody and the statements were not pursuant to a custodial interrogation, because it was not in connection with a criminal investigation. The supervisor testified before the jury Berry had been charged with capital murder when she met with her in jail; that she told Berry that the CPS placement decision would be affected if her family had any knowledge about the infant or other hidden pregnancies. Berry said "she knew how to hide a pregnancy" and that her family had no knowledge of the infant. She explained that she gave birth to him at home in her apartment, that it was an "easy delivery," that he was "fine" when he was born, that she had duct tape "lying around the house," and that she transported him in a trash bag to a dumpster without anyone's knowledge. The Court of Criminal Appeals held: (1) the CPS supervisor was not an agent of law enforcement who was required to comply with Miranda and Article V.A.C.C.P.; (2) the supervisor s purpose was to find a placement for Berry s children, and since family placement was being considered, she needed to know if Berry s relatives knew about the infant s death or the abandonment of Berry s infant daughter; (3) the supervisor denied having a law-enforcement purpose or acting at the direction of the police, and there was no evidence indicating that the police used the supervisor to gather evidence to be used against Berry in this capital-murder prosecution; (4) the trial court did not abuse its discretion in admitting the supervisor s testimony about Berry s statements because (a) state employment does not, by itself, make a person an agent of the state for the purpose of defining "custodial interrogation ; (b) law enforcement's job to ferret out crime, and CPS workers have a different duty, namely, to protect the welfare and safety of children in the community; (c) police officers and CPS workers generally run on separate, parallel paths, and when a state-agency employee is working on a path parallel to, yet separate from, the police, Miranda warnings are not required. The essential inquiry is: "Was this custodial interview conducted (explicitly or implicitly) on behalf of the police for the primary purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee?" Cagle v. State, 23 S.W.3d

5 590< oi=scholarr> (Tex. App.-Ft. Worth 2000) Aggravated Sexual Assault of a child under the age of 14 and indecency with a child by contact. Affirmed. 1. Confession -- CPS (Child Protective Services) Investigator Custodial Interrogation Defined Confession -- Invited To CPS (Child Protective Services) Office - No Custodial Interrogation Defendant made statement during a pre-arrest interview with a CPS (Child Protective Services) Investigator. The CPS worker testified she did not force Appellant to come to her office to talk to her, he was not placed under arrest and was free to leave at any time and left after their meeting. Defendant claimed that the statements were obtained during a custodial interrogation. Custodial interrogation is defined as: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966); Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.- Fort Worth 1998, no pet.). A person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Here: (1) Defendant was not force to come to the CPS office; (2) police did not pick defendant up; (3) Defendant was not place under arrest; (4) Defendant was free to leave the CPS office at any time; and (5) did in fact freely leave after the meeting. Court of Appeals held that: Defendant was not in custody ; hence, no statutory warnings were required. See. Wicker v. State, 740 S.W.2d 779, 784 (Tex. Crim. App. 1987)(defendant interviewed by caseworker prior to any arrest was not in custody), cert. denied, 485 U.S. 938 (1988). Garza v. State, 18 S.W.3d 813< oi=scholarr> (Tex. App.-Fort Worth 2000) Aggravated sexual assault. Affirmed. 1. Confession -- CPS (Child Protective Services) Investigator Confession -- CPS (Child Protective Services) Investigator - Interview in Jail - No Custodial Interrogation Defendant was in jail and had counsel appointed to represent him. A CPS (Child Protective Services) caseworker told him she was there to investigate claims of sexual abuse. Defendant stated he had awakened to find the complainant in his bed. He denied sexually abusing the complainant and then stated if any contact came, it was in his sleep. Defendant called the caseworker the next day and reiterated the claim that if there was sexual abuse, it was while he was asleep. These statements were admitted after a Jackson Denno hearing. The Court of Appeals held: (1) the case worker was not acting as a law enforcement officer when she interviewed Defendant and his statements were voluntary; (2) there was no evidence that there was a calculated practice by the case worker and the police to obtain statements the police could not obtain themselves. See Cares v. State, 776 S.W.2d 170 (Tex. Crim. App. 1989); Perez v. State, 681 S.W.2d 34 (Tex. Crim. App. 1984); McCory v. State, 643 S.W.2d 725 (Tex. Crim. App. 1982); (3) the Sixth Amendment does not bar admission of voluntary statements. [cid:image001.jpg@01d09c61.2f17bcf0] Greg S. Velasquez Date: Monday June 1, :11 Thanks to all for responses. The CPS attorney says she has the audio of the interrogation of my client and I hope to listen to it this afternoon.