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1200 Legal Bases for Child Protective Services

CPS February 2013

DFPS policy and practice are governed by specific mandates in federal and state law. These laws define the authority under which the agency operates and set forth the requirements with which its programs, including Child Protective Services (CPS), must comply.

Federal Law

DFPS and CPS are, first and foremost, governed by the U.S. Constitution and federal law related to child welfare. State laws and agency rules are designed to ensure protections of federally mandated rights. These rights include, but are not limited to, those relating to:

  •  the parent-child relationship;

  •  due process;

  •  the right to be free from unreasonable searches and seizures; and

  •  other basic rights that are at stake when DFPS or CPS are involved in a child’s, family’s, or perpetrator’s life.

In addition to the U.S. Constitution, the primary federal laws under which DFPS and CPS operate are found in the Child Abuse Prevention and Treatment Act (CAPTA) and Titles IV-B and IV-E of the Social Security Act. DFPS and CPS practices are also governed, in part, by federal laws such as the Americans with Disabilities Act (ADA), the Freedom of Information Act (FOIA), and the Public Information Act (PIA).

Titles IV-A, IV-B and IV-E of the Social Security Act provide federal funding to states, like Texas, with approved state plan assurances for provision of child welfare services. Because CPS receives Titles IV-A, IV-B and IV-E funding, it must comply with the relevant provisions of the Social Security Act, CAPTA and the Indian Child Welfare Act of 1978.

See the following websites for more information:

U.S. Constitution

Child Abuse Prevention and Treatment Act (CAPTA)

Social Security Act

Indian Child Welfare Act of 1978

Additionally, see:

1220 The U.S. Constitution and Governing Federal Law

1221 Constitutional Protections Under the Fourth Amendment

1221.1 Definitions of Search and Seizure

1221.2 Definition of Imminent and Exigent

1222 Federal Funding Under the Social Security Act

1222.1 Title IV-A and Temporary Assistance for Needy Families

1222.2 Title IV-B Child Welfare Services

1222.21 Title IV-B, Subpart 1

1222.22 Title IV-B, Subpart 2

1223 Title IV-E, Federal Payments for Foster Care, Adoption Assistance, and PCA Payments

1224 Child Abuse Prevention and Treatment Act (CAPTA)

1225 Indian Child Welfare Act

State Law

The primary state laws under which the department operates and that are specific to child welfare, are found in the Texas Family Code and the Texas Human Resources Code. The rules that govern DFPS and CPS’s day-to-day activities are found in the Texas Administrative Code.

Additionally, there are a variety of state laws affecting DFPS and CPS operations in a number of codes that are not specifically related to child welfare. This policy concentrates on the state laws that directly address child welfare and DFPS and CPS’s general authority to operate.

1210 Governing State Laws

CPS February 2013

State laws governing DFPS and CPS contain provisions covering a variety of topics including, but not limited to:

  •  defining abuse and neglect and CPS’s investigatory authority;

  •  delineating DFPS and CPS responsibilities to victims of abuse and neglect and to children under DFPS conservatorship;

  •  vesting DFPS and CPS with rule-making, regulatory, and investigatory authority;

  •  providing parents, caregivers and other alleged perpetrators of abuse and neglect with necessary services; and

  •  overseeing the adoption and interstate placements of children.

1211 Texas Human Resources Code

CPS February 2013

The Texas Human Resources Code (HRC) provides the framework for DFPS powers and duties as a state agency. Chapter 40 of the Texas Human Resources Code (HRC) creates DFPS as an agency and empowers it to act on behalf of abused and neglected children. It sets forth DFPS and CPS’s core duties to:

  •  provide protective services to children;

  •  provide family support and preservation services;

  •  license, register, and enforce regulations related to child care facilities, child care administrators and child-placing agency administrators; and

  •  implement and manage programs to provide early intervention or prevent at-risk behavior leading to child abuse.

Chapter 40 also provides a high-level description of DFPS programs and operations and mandates compliance with specific federal laws in order to ensure federal funding streams. It establishes DFPS as the “single state agency” responsible for administering Titles IV-B and Title IV-E of the Social Security Act and requires compliance with federal mandates to ensure continued receipt and maximization of federal funds for children under DFPS conservatorship.

1212 Texas Family Code

CPS February 2013

The Texas Family Code contains specific provisions governing the protection, custody, and conservatorship of abused and neglected children. Additionally, it contains provisions identifying DFPS’s responsibilities in relation to abused or neglected children and provides the legal definitions of abuse and neglect under which CPS operates.

1212.1 Texas Family Code Chapter 261 (Legal Definitions of Abuse and Neglect)

CPS February 2013

Texas Family Code (TFC) Chapter 261 contains the legal definitions of abuse and neglect. It also sets forth DFPS and CPS’s legal authority to investigate allegations of abuse and neglect and to maintain the Central Registry.

Additionally, Chapter 261 outlines responsibilities for abuse and neglect investigations among state and local agencies, including DFPS, CPS, and the basic parameters for:

  •  receiving abuse and neglect allegations and conducting subsequent investigations;

  •  notifying law enforcement agencies of all child abuse and neglect reports;

  •  conducting joint investigations with law enforcement;

  •  initiating investigations based on the severity and immediacy of the allegations;

  •  ensuring casework documentation and management;

  •  seeking assistance from a county or district attorney for failure to cooperate with an investigation;

  •  establishing policies and procedures to resolve complaints relating to, and conduct reviews of, abuse and neglect investigations; and

  •  establishing investigation standards.

1212.2 Texas Family Code Chapter 262 (Removal of Neglected Children)

CPS February 2013

TFC Chapter 262 outlines DFPS and CPS’s authority to remove abused and neglected children from their homes both with and without a court order. It also details the legal standards and proceedings necessary to become a managing conservator of abused and neglected children and to take possession of abused and neglected, missing, and abandoned children in emergency and non-emergency situations.

This chapter vests DFPS and CPS with the authority to:

  •  file a petition seeking possession of a child;

  •  file a petition seeking removal of an alleged perpetrator from a home;

  •  seek an emergency order authorizing possession of a child; and

  •  take possession of a child in an emergency without a court order.

TFC Chapter 262 also provides detailed instructions on what steps must be taken after a child is taken into possession by agency staff and mandates that a full adversary hearing must occur no later than the 14th day after CPS takes a child into possession. 

See also 5000 Court-Related Services.

1212.3 Texas Family Code Chapter 263 (Placement of Children Under Conservatorship)

CPS February 2013

TFC Chapter 263 concerns the temporary or permanent placement of children under DFPS conservatorship. It mandates that DFPS create permanency plans, with concurrent primary and alternate permanency goals, for every child over whom it retains conservatorship. It also contains explicit timeframes for periodic review hearings to be conducted by the court, and specifies certain issues which the court must review at each hearing.

Additionally, this chapter specifies deadlines (usually one year from the date that temporary managing conservatorship is awarded to DFPS) for achieving a final order in a suit affecting a parent-child relationship. This chapter also makes provisions for the extension of the court’s jurisdiction when a young adult ages out of foster care and certain additional criteria are met.

1212.4 Texas Family Code Chapter 264 (Protection of Children in Conservatorship or Substitute Care)

CPS February 2013

TFC Chapter 264 contains provisions relating to the protection of children under DFPS conservatorship and while living in substitute care, with special considerations for the placement of children under two years old. It is a broad and comprehensive chapter addressing a range of topics that are all generally related to the provision of services to children in substitute care and to their families and relative caregivers, as well as to the proper use of assessment services when determining substitute care placement for any given child. Its provisions relate to eligibility for foster care, the DFPS Kinship Care Program, Permanency Care Assistance, child fatality review teams, parental child safety placements (PCSPs), court appointed special advocates (CASAs), children’s advocacy centers (CACs) and services to at-risk youth.

Among other things, this chapter provides for DFPS cooperation with county child welfare boards, mandates trauma-informed training for caregivers and DFPS caseworkers, and requires DFPS to provide certain records to foster children when they turn 18 and are released from care.

1212.5 Texas Family Code Chapter 266 (Medical Care and Health Passports for Children Under DFPS Conservatorship)

CPS February 2013

TFC Chapter 266 contains mandates related to medical care and health passports for children under DFPS conservatorship. It authorizes DFPS and its agents to act as a medical consenter for foster children 15 years old and younger, and for foster children who are at least 16 years old but do not have a court determination allowing them to consent to their own medical care.

In addition, Chapter 266:

  •  authorizes DFPS and its agents to designate a foster parent to act as a medical consenter when parental rights have not been terminated;

  •  details the duties and responsibilities of medical consenters in relation to the care and treatment of all foster children;

  •  mandates comprehensive medical assessments of children and the designation of a “medical home” upon entry into care; and

  •  requires that DFPS and its agents maintain Health and Education Passports for foster children for as long as they remain in substitute care. 

1213 Texas Administrative Code

CPS February 2013

Title 40, Chapter 700 of the Texas Administrative Code (TAC) contains the bulk of agency rules under which CPS operates. DFPS’s rulemaking authority is established by Title 10 of the Administrative Procedures Act (APA).

DFPS and CPS rules found in Title 40, Chapter 700 of TAC, collectively reflect federal and state law, as well as CPS policy, direct day-to-day CPS activities and outline its procedures. It also explains how individuals may appeal certain CPS decisions.

Chapter 700 contains rules that pertain to specific subjects including the following:

  •  Confidentiality and release of records

  •  Eligibility of Child Protective Services

  •  School investigations

  •  Intake, investigation and assessment of abuse or neglect allegations

  •  Criteria for the receipt of Adoption Assistance

  •  Purchased protective services to prevent removal or to reunify

  •  Assistance programs for relatives and other caregivers

  •  Court-related services

  •  Permanency Planning

  •  Substitute-care services

  •  AIDS policies for children in DFPS conservatorship

  •  Foster and Adoptive Home Development

  •  Preparation for adult living

  •  Purchased protective services

  •  Strengthening families through enhanced in-home support program

  •  Interstate placement of children

  •  Level-of-care service system

  •  Title IV-A emergency assistance program

For more information on the Administrative Procedures Act, see the Texas Government Code, Chapter 2001.

1220 The U.S. Constitution and Governing Federal Law

CPS February 2013

Collectively, the U.S. Constitution and the federal laws pertaining to child welfare establish minimum definitions, standards, and procedures that are reflected in state law, and DFPS and CPS rules and procedures.

Constitutional protections of particular importance to DFPS and CPS are those relating to the Fourth Amendment right to be free from unreasonable search and seizure, the right to due process under the Fifth and Fourteenth Amendments, and the right to equal protection also under the Fourteenth Amendment.

1221 Constitutional Protections Under the Fourth Amendment

CPS February 2013

DFPS and CPS operations give special consideration to the Fourth Amendment protection from unreasonable search and seizure.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Although CPS investigators are not law enforcement officers, Texas courts have determined that the right to be free from unreasonable search and seizure exists during a DFPS or CPS investigation. State laws and agency rules governing DFPS and CPS investigations are designed to ensure that persons alleged to have abused or neglected a child are free from unreasonable search and seizure by agency employees. By their very nature, however, DFPS and CPS investigations entail some amount of unavoidable infringement on the privacy of those involved in an abuse or neglect investigation. 

1221.1 Definitions of Search and Seizure

CPS February 2013

The words “search” and “seizure” as used in the Fourth Amendment have the following definitions:

  •  A search is the act of entering a home or inspecting another place where a person has a reasonable expectation of privacy.

  •  A seizure is an act that would make a reasonable person feel that he, she, or other persons (such as family members) are not free to leave.

  •  An individual is protected by the Fourth Amendment any time DFPS or CPS performs a search or seizure.

1221.2 Definition of Imminent and Exigent

CPS February 2013

CPS Investigators and staff may not remove a child from his or her home without a court order unless the child is in imminent danger of harm or there are exigent circumstances to justify acting without a court order.

The terms “imminent” and “exigent” have the following definitions:

  •  Imminent means immediate.

  •  Exigent circumstance means that there is a situation requiring immediate action.

For example, a CPS investigator talks to an alleged victim of sexual abuse. The victim states that her father has been physically and sexually abusing her every Friday night during her weekly visitations in his home and that this has been happening for an extended period of time. The date of the interview falls on a Friday, the father is scheduled to pick the child up from school for her weekly visitation, and the investigator finds the child’s outcry to be credible.

In this instance, the investigator can find both that the child is in immediate danger of physical and sexual abuse and that there is an exigent circumstance justifying removal without a court order.

Emergency Removal without a Court Order

Unless CPS staff believe that a child is in immediate jeopardy or sexual abuse is about to occur, emergency removal without a court order is not warranted.

For additional guidance on ensuring compliance with the Fourth Amendment during investigative interviews, see 2390 Investigative Interviews and its subitems.

1222 Federal Funding Under the Social Security Act

CPS February 2013

Titles IV-A, IV-B and IV-E of the Social Security Act provide federal funding for states, like Texas, with approved state plan assurances for the provision of child welfare services. Generally, these funds are used for programs related to child welfare including, but not limited to, permanency, family preservation, reunification, caregiver assistance, and support for at-risk families.

Although states are required to comply with strict requirements governing access to the funds, there is latitude for child welfare agencies to determine how best to utilize these funds, within certain parameters, for the specific needs of children and families in their state.

1222.1 Title IV-A and Temporary Assistance for Needy Families

CPS February 2013

Title IV-A of the Social Security Act provides grants to states, including Texas, to fund Temporary Assistance for Needy Families (TANF) programs and services. The Texas Health and Human Services Commission (HHSC) serves as the designated state agency generally responsible for administering funding under the Social Security Act.

However, CPS administers Title IV-A (TANF) funded programs and services to provide assistance for specific needs to families being served by the department.

Title IV-A (TANF) funded services and programs administered by CPS are:

  •  Family Based Safety Services (FBSS);

  •  Protective Child Care;

  •  Relative Caregiver Child Care;

  •  Relative Caregiver Reimbursement;

  •  Services to At-Risk Youth; and

  •  Strengthening Families Through Enhanced In-Home Support Program.

Additionally, families may also receive emergency (cash) assistance to help provide for basic needs such as food, clothing, housing and utilities.

Access to programs and services funded by Title IV-A (TANF) funds is income based and limited to those meeting eligibility criteria as outlined in the Texas State Plan for TANF.

1222.2 Title IV-B Child Welfare Services

CPS February 2013

Title IV-B of the Social Security Act contains two subparts, Subpart 1 and Subpart 2. States receiving Title IV-B funds under either subpart must draft and follow a state plan assurance explaining how the money is used and the programs and services that are run wholly, or in part, with Title IV-B funds. See 42 U.S.C. 622 for federally mandated state plan assurance requirements.

The state plan assurance must cover a period of five years with each state also required to complete an annual update (the Annual Progress and Services Report). The annual updates are required for states to receive their federal allocation of Title IV-B funds, as well as their allocation of federal funds under the Child Abuse Prevention and Treatment Act (CAPTA). The update also gives states an opportunity to apply for funding to support the Chafee Foster Care Independence Program.

Upon the expiration of each five year plan, states are required to submit a new plan and to continue with annual updates.

The DFPS State Plan assurance lays the foundation for, and guides, casework practice throughout CPS.

1222.21 Title IV-B, Subpart 1 (The Stephanie Tubbs Jones Child Welfare Services Program)

CPS February 2013

The Stephanie Tubbs Jones Child Welfare Services Program, also known as Title IV-B, Subpart 1 of the Social Security Act, provides grants to states and Indian tribes for programs directed toward keeping families together. The funds are intended for programs and services that assist families whose children have either been removed, or who are on the verge of being removed, from their homes. The funds are also used for reunifications services and efforts. Programs and services funded under this subpart are available to children and their families without regard to income.

Generally, there is a strong emphasis on using these funds, in combination with state, local, and private funds, to:

  •  protect and promote the welfare of all children;

  •  prevent the neglect, abuse, or exploitation of children;

  •  support at-risk families through services which allow children, where appropriate, to remain with their families or return to their families in a timely manner;

  •  promote the safety, permanence, and well-being of children in foster care and adoptive families; and

  •  provide training, professional development, and support to ensure a well-qualified workforce.

1222.22 Title IV-B, Subpart 2 (Promoting Safe and Stable Families)

CPS February 2013

Promoting Safe and Stable Families, also known as Title IV-B, Subpart 2, of the Social Security Act, provides funding for programs and services designed to:

  •  help prevent the unnecessary separation of children from their families;

  •  improve the quality of care and services to children and their families; and

  •  ensure permanency for children by either reuniting them with their parents, either by seeking adoption or by making other permanent living arrangements.

States are required to spend most of their allotted Title IV-B, Subpart 2 funds for services that address:

  •  family support;

  •  family preservation;

  •  time-limited family reunification; and

  •  adoption promotion and support.

The services are designed to help state child welfare agencies and eligible Indian tribes establish and operate integrated, preventive family preservation services and community-based family support services for families at risk or in crisis. Funds go directly to child welfare agencies, such as DFPS and eligible Indian tribes, to be used in accordance with their state assurance plans.

1223 Title IV-E, Federal Payments for Foster Care, Adoption Assistance, and PCA Payments

CPS February 2013

Title IV-E of the Social Security Act provides federal funding to child welfare agencies and eligible Indian tribes to help provide foster care, transitional living programs and adoption assistance. For additional information on these topics, see:

42 U.S.C. 671

42 U.SC. 673

In addition to the foster care and adoption assistance programs, Title IV-E also provides federal funds for “guardianship assistance”. See 42 U.S.C.673. However, because Texas courts award “conservatorship” instead of “guardianship” in child welfare cases, DFPS uses Title IV-E funds earmarked for “guardianship assistance” to fund its Permanency Care Assistance (PCA) program.

Each child welfare agency, including DFPS, that receives Title IV-E funds for foster care, independent living services, adoption assistance, and guardianship assistance, must draft and follow a state plan assurance. The plan includes all applicable state statutory, regulatory, or policy references and citation for each requirement, as well as supporting documentation. Additionally, the plan must be updated when there are significant changes to state programs or in response to changes in federal law.

The Title IV-E Foster Care program helps states and Indian tribes provide safe and stable out-of-home care for children until they are returned to their homes, are permanently placed with adoptive families, or are placed in other permanent arrangements by a child welfare agency. The program provides federal funds for foster care maintenance payments to eligible children under state custody. Children must meet eligibility requirements under Title IV-E, as well as state eligibility requirements to qualify for benefits under the Foster Care program.

In Texas, the criteria to receive Foster Care Maintenance Payments are set forth in the Texas Administrative Code. For more information, see 40 Texas Administrative Code, Chapter 700, Subchapter C, Eligibility for Child Protective Services.

The Adoption Assistance Program provides federal funds to facilitate the timely placement of children, whose special needs or circumstances would otherwise make it difficult to place, with adoptive families. Eligible children receive Medicaid and a monthly stipend designed to assist adoptive parents in meeting their needs. Adoptive parents are also eligible for a capped reimbursement of nonrecurring expenses to help offset the cost of adoption.

The Permanency Care Assistance (PCA) program provides financial support to relative or fictive kin caregivers who take permanent legal responsibility for a child whom they have previously fostered, who cannot be reunited with his or her parents, and for whom adoption is not an appropriate permanency option. CPS defines “fictive kin” as someone who is not related to a child under DFPS conservatorship, but who has, or who once had, a long-standing relationship with the child or with the sibling group of which the child is part. Teachers, coaches, family friends, godparents or long-time neighbors are examples of people who may be “fictive kin.”

In some instances, these types of IV-E funds may also be used to support siblings of eligible children.

For more information, see 40 Texas Administrative Code, Chapter 700, Subchapter J, Division 2, Permanency Care Assistance Program.

See also:

1540 Foster Care Assistance Eligibility Requirements for Children and Youth Formerly in DFPS Conservatorship

1560 Management of Children’s Funds

1224 Child Abuse Prevention and Treatment Act (CAPTA)

CPS February 2013

The Child Abuse Prevention and Treatment Act (CAPTA, amended by the Keeping Children and Families Safe Act of 2003), provides federal funding to states and Indian tribes to support programs and services focused on prevention, assessment, investigation, prosecution, and treatment activities related to child abuse and neglect.

States have wide latitude for determining how to use CAPTA funds, but are required to use the funds for programs and services that improve the child protective services system in a number of key areas including:

  •  improving and enhancing intake, investigations, legal representation, and case management;

  •  developing and implementing risk and safety assessment tools and protocols;

  •  improving the skills, qualifications and abilities of child welfare workers and supervisors;

  •  developing and implementing training protocols for reporters; and

  •  providing for legal representation of children (attorneys or guardian ad litems) in judicial proceedings

Recipients of CAPTA funds, including DFPS, are required to submit a state assurance plan every five years specifying their use, or intended use, of funds. Recipients must also submit notification to the federal government when there are substantive changes in state law and when there are significant changes to how CAPTA funds are being used.

For more information, see:

Child Abuse Prevention and Treatment Act

The Children’s Bureau analysis CAPTA2003

1225 Indian Child Welfare Act

CPS February 2013

The Indian Child Welfare Act (ICWA) is a federal law aimed at keeping Native American children who are involved in child welfare cases with Native American families. The stated intent of the legislation is to protect the best interests of Native American children and to promote stability amongst Native American families.

ICWA sets federal requirements that apply to state child custody proceedings involving Native American children who are members of, or eligible for membership in, a federally recognized tribe. ICWA establishes standards for removing Native American children from their families and for placing them in foster and adoptive homes. It also allows for a child’s tribe to intervene in the legal proceedings.

A child must meet the criteria of an “Indian child” as defined by federal law in order for ICWA to apply. However, CPS policy requires workers in every abuse or neglect case to determine whether a child or the child’s family has Native American ancestry or heritage. If Native American ancestry is claimed, CPS workers are required to follow specific procedure to ensure compliance with ICWA.

See:

Indian Child Welfare Act

Federally Recognized Tribes

For information on CPS policy related to ICWA, see:

Form 1706 Checklist for Compliance with the Indian Child Welfare Act

For information about the ICWA and DFPS’s responsibilities under it, see:

Appendix 1226-A: Child-Placing Requirements of the Indian Child Welfare Act and Related Guidelines and Regulations

Appendix 1226-B: Checklist for Compliance with the Indian Child Welfare Act

1240 General Eligibility Criteria for Child Protective Services

CPS 96-8

Law

DFPS provides protective services to children as required by the Texas Family Code, Chapters 261 and 262, and the Human Resources Code. DFPS provides services to the families of children receiving protective services under Titles IV-A, IV-B, IV-E, and XX of the Social Security Act, the Intended Use Report, and Chapter 47 of the Human Resources Code.

Texas Family Code Chapters 261, 262

Texas Human Resources Code Ch. 47

Management Policy

To receive child protective services, the child or the child's family must be eligible at the time service is rendered.

The state plans contain the services offered by DFPS. Clients must meet the eligibility criteria for the specific service as detailed in the state plans.

Law

DFPS must not discriminate on the basis of race, color, national origin, sex, religion, or handicap in providing child protective services.

1241 Child Protective Services Priorities

CPS 96-8

Management Policy

DFPS is committed to providing at least minimally adequate protective services to all children who need them. Because of limited resources, however, DFPS must establish priorities for provision of services.

DFPS priorities for child protective services are based on the purposes and objectives of the program. (See Item 1110, Purpose and Objectives.) By establishing priorities, DFPS has provided statewide criteria for the types of situations and responsibilities DFPS staff respond to before others. The priorities also indicate which children DFPS is not required to serve and which responsibilities DFPS is not required to perform statewide.

Priorities are subject to change.

Priorities for child protective services are listed in the service sections in this handbook and are published yearly in the state plans.

1242 Request for Child Protective Services

CPS 96-8

Management Policy

Parents who believe they have abused or neglected their children may request a child protective services investigation from DFPS. Parents may request child protective services from DFPS to prevent further abuse or neglect or removal of the children.

If DFPS denies, reduces, or terminates requested service, or does not act on the request with reasonable promptness, the parent has the right to an administrative review and a fair hearing.

Cross-references: See

Item 1244, Administrative Review of Client Complaints; and

Item 1245, Fair Hearings.

1243 Right to Refuse Services and Consequences of Refusal

CPS 96-8

Rule

A parent's absence or refusal to accept services offered by [DFPS] does not change [DFPS's] legal responsibility to protect children. Parents must not be coerced or defrauded into accepting services but must be notified of the steps [DFPS] may take to protect the children if the parents refuse services.

Parents have the right to refuse services offered by [DFPS] unless a court has ordered the services.

If parents refuse to allow [DFPS] to investigate, [DFPS] may request the county or district attorney to petition the court for an order that requires the parents to allow the investigation. If the allegation of abuse or neglect or other information available to [DFPS] indicates immediate danger to the child, [DFPS] may also seek a court order to remove the child from the home. [See Section 5200 General Issues and Requirements Relevant to CPS Legal Proceedings.]

DFPS Rules, 40 TAC §700.308

1244 Administrative Reviews of Client Complaints

CPS 96-8

Rule

CPS clients have the right to an administrative review of any complaint about [DFPS's] child protective services. When clients make a complaint, staff inform the clients that they may request an administrative review.

An administrative review is conducted by staff at a higher level than the worker within a reasonable time after the client requests the review.

DFPS Rules, 40 TAC §700.309

Management Policy

Cross-references: For additional information about administrative reviews, see

Item 6360, Administrative Review of Foster-Parent Concerns About New Placements;

Item 7820, Denial of Foster Group Home Applications/Closure of Certified Foster Group Homes; and

Item 7800, Administrative Review (for adoptive applicants).

1245 Fair Hearings

CPS 96-8

Rule

Child protective services clients have the right to a fair hearing if services they request are denied, reduced, or terminated, or if [DFPS] does not act on their request for services with reasonable promptness.

When a worker or supervisor informs a client that requested services have been denied, reduced, or terminated or will not be provided with reasonable promptness, the worker or supervisor must also inform the client

  •  that the client may request a fair hearing to question [DFPS] action,

  •  the procedures for requesting a fair hearing, and

  •  that the client may be represented at the hearing by others including legal counsel.

If requested, the worker must assist the client in completing Form 4800, Request for Fair Hearing.

DFPS Rules, 40 TAC §700.310

Management Policy

The worker must provide the hearing officer with necessary case record material. The reporter's identity must be deleted from case record material given to the hearing officer.

Refer to the Fair Hearings, Fraud, and Civil Rights Handbook for more information about fair hearings.

1250 Clients With Limited English Proficiency (LEP)

CPS December 8, 2003

Title VI of the of the Civil Rights Act of 1964 requires that state and local governments must ensure that their programs and activities normally provided in English are accessible to persons with limited English proficiency (LEP) and that they do not discriminate on the basis of national origin.

Definitions

Limited English Proficiency (LEP): a limitation in the ability of a person whose first language is not English to communicate in English.

LEP Clients: CPS clients whose ability to communicate in English is limited as defined above. The clients may be children, biological parents, foster caregivers, adoptive parents, or other persons deemed responsible for the care, custody, or welfare of the child.

Communicating with LEP Clients

When a client's ability to communicate in English is limited, CPS must undertake reasonable, documented efforts to provide him or her with information and services in a language that the client can understand through the use of interpreters, translators, or other identified methods.

CPS's efforts may include, but are not limited to:

  •  the recruitment and hiring of bilingual workers;

  •  the recruitment of bilingual foster caregivers and adoptive parents;

  •  the use of interpreters and translators; and

  •  the use of bilingual brochures, forms, and other printed materials.

CPS must undertake reasonable efforts to ensure that LEP clients must understand, as fully as possible, all significant CPS actions at each of the following stages and points of service:

  •  investigation of allegations of child abuse or neglect;

  •  adverse actions such as removal of a child from his home;

  •  case planning and service delivery;

  •  judicial proceedings in which the court does not itself provide bilingual or interpreter services;

  •  temporary and permanent placements outside the home; and

  •  appeal proceedings and administrative reviews.

Note: CPS's efforts to provide bilingual or interpreter services must not delay or interfere with any actions necessary to:

  •  protect a child from harm or risk of harm; or

  •  comply with legal requirements.

Ensuring Comprehension of Written Material

Notwithstanding LEP status, a client may have a limited ability to understand material written in his or her own language. When communicating CPS purposes, goals, and services to a client, caseworkers should verbally review written material with the client and the interpreter to ensure that it is fully comprehended.

Family Members / Child Victims as Translators

CPS does not use family members or friends to interpret, translate, sign, or read for LEP clients, except at the client's specific request. Child victims should not be used as translators except for brief interaction to ascertain the client's request and/or arrange requested translation services. Ideally, interpreters and translators will be professionally trained or will be a CPS staff person who is fluent in the client's preferred language.

Documentation

In IMPACT, LEP should be noted in the Person Characteristics Window in all stages of service. Documentation in the case record should include:

  •  any offer of an interpreter (whether the client accepts or rejects the offer);

  •  the use of an interpreter;

  •  the interpreter's name;

  •  the interpreter's relationship to the LEP person (if any) or professional affiliation;

  •  the use of any type of communication aids (e.g., a communication board, pictures, etc.)

  •  the caseworker's ability to communicate in the client's preferred language; and

  •  the reason an interpreter was not used.

Staff should complete the Translator Services form available on Smiley any time translation services are offered to an LEP client. Staff should ensure that the client signs the form whenever such services are refused. The Translator Services form may be used multiple times in any stage of service.

Substitute Care Placements

When CPS removes an LEP child from his or her home, staff must consider the child's language needs and assess the importance of placing him with a foster family that speaks his own language. Language is not the only factor to consider in placing the child, but it must not be neglected.

The service plan of an LEP child in substitute care must address the following issues:

  •  communication between the child and the foster family if the foster family does not speak the child's language;

  •  the availability of bilingual classes and remedial English programs at the child's school;

  •  the need for and availability of counseling services in the child's language;

  •  the need for and availability of other services in the child's language; and

  •  the availability of bilingual CPS staff or interpreters.

If the child is placed in an LEP foster family, the child's service plan must also indicate how CPS staff will communicate with the foster family. CPS must make reasonable efforts to assign bilingual workers to LEP children and LEP foster families. When it is not possible to assign a bilingual worker, staff must find other ways to communicate with the clients. Options include, but are not limited to:

  •  using other bilingual workers, staff members, or volunteers to interpret;

  •  working with outside interpreters; and

  •  working with agencies that specialize in services to families of the foster child's ethnicity.

1251 Clients With Communication Disabilities

CPS December 2007

Discrimination Against Persons With Disabilities Prohibited

The Americans with Disabilities Act (ADA) prohibits state and local government entities from discriminating against people with disabilities. An individual with a disability cannot be denied benefits or excluded from participation in a public entity’s services, programs, or activities. Therefore, CPS, as a state entity, may not discriminate on the basis of a disability when providing services, programs, or activities.

American With Disabilities Act (ADA)

Definition of a Person With a Disability

Under the ADA a person with a disability is an individual who:

  •  has a physical or mental impairment that substantially limits one or more of the individual’s major life activities;

  •  has a record of such impairment; or

  •  is regarded as having such an impairment.

For information on eligibility for CPS services, see 1240 General Eligibility Criteria.

For information on effective communication with clients for whom English is not the primary language, see 1250 Limited English Proficiency.

1251.1 Requirements for Auxiliary Aids and Services

CPS December 2007

Auxiliary aids and services are those devices or services that facilitate communication and access to services. CPS staff must furnish auxiliary aids or services as necessary to ensure effective communication for clients with hearing, vision, or speech disabilities who are being served or investigated.

CPS staff must ensure that communications with clients who have communication disabilities are as effective as communications with other clients, and that clients understand all significant CPS actions as fully as possible at each stage of service.

When emergency action must be taken to protect a child, CPS staff must provide auxiliary aids or services at the earliest possible opportunity to ensure that the client with a communication disability understands as fully as possible all actions taken by CPS.

Exception

When emergency circumstances require immediate action to protect a child from harm or risk of harm, CPS staff must not hesitate to protect the child while attempting to communicate with clients who have hearing, vision, or speech disabilities.

Efforts to provide the preferred method of communication must not delay or interfere with any actions necessary to protect a child from harm or risk of harm, or to comply with legal requirements.

Definition of Clients

Clients include children, biological parents, foster caregivers, adoptive parents, or other persons deemed responsible for the care, custody, or welfare of the child.

Which Auxiliary Aid or Service to Use

In determining which auxiliary aid or service to use, CPS staff must use the type and method of communication that is preferred or requested by the client, unless another equally effective means of communication is available.

Clients With Vision Disabilities

For clients with vision disabilities, examples of the types of aids or services that should be provided include, but are not limited to, the following:

  •  Readers

  •  Audio tapes

  •  Braille

  •  Large print

Clients Who Are Deaf or Hard of Hearing

For clients who are deaf or hard of hearing, examples of the types of aids or services that should be provided include, but are not limited to, the following:

  •  Sign language interpreters

  •  Note takers

  •  Transcription services

  •  Written or printed materials

  •  Telephone handset amplifiers

  •  Assistive listening devices

Clients With Speech Disabilities

For clients with speech disabilities, examples of the types of aids or services that should be provided include, but are not limited to, the following:

  •  Speech-to-Speech Relay

  •  Text-to-Voice Software

1251.2 Sign Language Interpreter Requirements During CPS Interventions

CPS December 2007

Prohibition Against Using Family Members, Friends, or Child Victims as Sign Language Interpreters

CPS does not use family members or friends to interpret, sign, or read for clients with a disability, except at the client’s specific request, and then only when ADA requirements are being satisfied.

Child victims may not be used as interpreters except for brief interaction to ascertain the client’s request and arrange requested interpreter services.

Victims, their family members, or friends rarely meet the impartiality requirements of a qualified interpreter as defined by the ADA.

Obtaining Qualified Interpreters

The ADA defines a qualified interpreter as one who is “able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.”

When possible, CPS staff arranges to use an interpreter at the highest appropriate level available certified by:

  •  the Board for Evaluation of Interpreters (BEI); or

  •  the Registry of Interpreters for the Deaf (RID).

BEI recommends that CPS provide clients who are deaf or hard of hearing with interpreters certified at Level III, IV, or V. Using one of the recommended levels of interpreter services helps to ensure that the ADA definition of a qualified interpreter is met. 

CPS staff may contact one of the DHHS program specialists listed on the DHHS Specialists page of the DARS Web site to request a referral to appropriately certified interpreters. When a client requests an interpreter or other auxiliary aid or service, CPS staff must document the request clearly and conspicuously in IMPACT and the client’s case record and include the need in any service plan throughout the life of the case.

Instances requiring interpreter services include, but are not limited to the following:

  •  Interviews

  •  Supervised visitation

  •  Permanent Planning Team meetings and other staffings

  •  Family Group Conferences

  •  Trainings and meetings involving adults who are deaf and are interested in becoming foster parents

Certified Interpreters Required for Court Hearings

Courts are required to provide interpreter services for persons who are deaf or hard of hearing during court hearings and other court proceedings.

The interpreter must hold:

  •  a Court Interpreter Certification (CIC) from BEI; or

  •  RID’s Specialty Certificate: Legal (SC:L). 

Texas Government Code, Chapter 57

Contact information for current holders of the CIC is located on the BEI Interpreter Search page of the DARS Web site.

Prompting the Court to Provide an Interpreter

Although the requirement to provide an interpreter applies to the court and not to CPS, if the court has not indicated plans to provide an interpreter with the required certification CPS must request that the district attorney’s office notify the court of the requirement.

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