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2500 Removing a Child From the Home

CPS January 2013

Texas law permits DFPS to remove a child from his or her home in specific circumstances for the child’s protection; however, the U.S. Constitution and court cases place important additional limitations on when and how DFPS can remove a child. This policy explains how to conduct removals within those limitations.

See:

1221 Constitutional Protections

Texas Family Code §§262.102; 262.104; 262.113

Summary of Constitutional Requirements for Removing a Child

If the worker and the supervisor have determined that it is necessary to remove a child from his or her home, the worker must obtain:

  •  consent from the parent;

  •  a court order; or

  •  approval from CPS management to remove the child based on exigent circumstances.

For more specific information, see 2520 Determine the Basis of Authority for Removing a Child.

2510 Evaluate the Need for Removal

CPS January 2013

The worker determines whether each child’s safety can be assured in the home. See 2312.6 Making the Safety Decision.

If a child’s safety cannot be assured in the home, the worker makes a reasonable effort to prevent removal, such as working with the family to arrange a parental child safety placement. See 2315.1 Controlling Safety Threats.

If no reasonable effort can be made to prevent removal and assure the child’s safety, the worker determines the basis of authority for removal and properly conducts the removal.

2511 Removal of Certain Children With Sexually Transmitted Diseases (STDs)

CPS January 2013

If CPS is conducting an investigation into a family and discovers that a child under the age of 11 has a sexually transmitted disease, CPS is required to take certain actions, regardless of whether the child is the subject of the allegations in the investigation or whether there are any specific sexual abuse allegations in the case. In this scenario, the worker must:

  •  ensure that a special investigator is assigned to the case as a secondary worker, in order to assist in the investigation of the case; and

  •  file for an emergency removal of the child, unless CPS takes all of the required actions outlined in 2511.2 Required Actions for Children Under 11 Who Have Sexually Transmitted Diseases, and determines that an emergency removal is not necessary for the protection of the child.

Texas Family Code §262.010

See 2520 Determine the Basis of Authority for Removing a Child.

2511.1 Guiding Principles

CPS January 2013

Nothing in Texas Family Code §262.010 alters CPS’s other duty or authority to remove children who are unsafe in their homes. The safety of children is paramount and guides CPS practice.

If CPS determines that an emergency removal is appropriate before completing all the steps outlined in 2511.2 Required Actions for Children Under 11 Who Have Sexually Transmitted Diseases and 2512.3 Required STD Testing for the Perpetrator, it should conduct an emergency removal as soon as possible to protect the child.

In addition, nothing in the provision alters CPS’ authority and duty to remove children over the age of 11 with sexually transmitted diseases when appropriate. Finally, if CPS completes all the required actions and determines that it is appropriate to seek a non-emergency removal, it must do so.

2511.2 Required Actions for Children Under 11 Who Have Sexually Transmitted Diseases

CPS January 2013

Presence of an STD in a child under 11 is strongly indicative of sexual abuse unless an alternative explanation for how the STD was contracted is supported by a preponderance of evidence. Unless a request for emergency removal is filed, the worker must complete each of the following steps before closing the investigation or taking other appropriate action, such as seeking a non-emergency removal:

1.   Review all the medical evidence in the case to determine whether the medical evidence supports a finding that abuse likely occurred.

2.   Interview the child and other people residing in the child’s home in accordance with CPS handbook 2360 Investigative Interviews.

3.   Staff the case with local law enforcement and conduct a joint investigation whenever possible.

4.   Determine whether any other child in the home has a sexually transmitted disease and, if so, refer the child for a sexual abuse examination. If the parent does not consent to the examination, the worker must seek a court order for this purpose or the worker and supervisor must determine that there are exigent circumstances. In this case, the worker will perform a removal and the examination can be conducted following the removal. See 2374 Sexual Abuse Examinations.

5.   Ensure that each alleged victim undergoes a forensic interview at a Children’s Advocacy Center (CAC), unless:

  •  the caseworker determines that the interview would not yield a successful interview because of the child’s age or developmental level; or

  •  no CAC is available in the county in which the child resides. In this instance, a worker with training in forensic interviews must conduct the interview.

6.   Consult with a DFPS nurse or other medical expert to discuss the ways in which the STD may have been transmitted and whether it is likely that abuse occurred.

7.   Contact any additional witness who may have information relevant to the investigation, including other individuals who had access to the child. It is essential to contact any witness who can verify or discredit the explanation given for the origin of the child’s STD by the parent or other party in the case, especially where there is no clear or persuasive explanation. In particular, the worker should seek to interview collaterals – neighbors and any other adults – who may have information regarding individuals with access to the child, such as visitors to the home. If the caseworker completes steps 1-7 and determines that there is not a preponderance of evidence that abuse occurred, the caseworker must obtain an opinion from the Forensic Assessment Center Network (FACN) as to whether the evidence in the case supports a finding that abuse did likely occur.

If the caseworker determines that there is a preponderance of evidence that abuse occurred, the caseworker may seek an opinion from the FACN to obtain additional, expert perspective.

If at any point during the investigation it is determined that abuse likely occurred, the worker must staff the case with his or her supervisor and the attorney representing DFPS to determine whether  an emergency removal is necessary for the immediate protection of the child. If a removal is necessary, but the facts do not support an emergency removal, then a non-emergency removal should be filed. As in any other investigation, if CPS determines that a removal is not necessary for the protection of the child (such as, if there is a protective parent and the likely perpetrator no longer has access to the child), CPS may:

  •  take any other actions necessary for the protection of the child; or

  •  close the case if all risk factors have been controlled and the worker has complied with all of the investigatory steps required under this section and 2511.3 Required STD Testing for the Perpetrator.

2511.3 Required STD Testing for the Perpetrator

CPS January 2013

If CPS determines at any point during the investigation of a child younger than 11 with an STD that sexual abuse likely occurred, and CPS has identified a likely perpetrator of the sexual abuse, staff must either:

  •  request that the likely perpetrator voluntarily submit to medically appropriate diagnostic testing for the STD; or

  •  work with law enforcement to obtain a search warrant and require the alleged perpetrator to undergo STD testing.

Texas Family Code, §262.010(b)

2512 Obtain Approval for Removal

CPS May 2009

Once the need for removal is determined, the worker takes the following steps:

  •  Obtain approval from the supervisor and program director

If …

then …

the supervisor is unavailable, …

the program director may give approval for the supervisor.

the program director is unavailable, …

the worker or supervisor contacts the program administrator or designee to obtain approval.

  •  Meet any additional requirements that the region has established for securing approval of a child's removal

  •  Obtain a court order, unless there is a need for an emergency removal before obtaining a court order (see 2520 Determine the Basis of Authority for Removing a Child)

Texas Family Code §262.101

2520 Determine the Basis of Authority for Removing a Child

CPS December 2013

Evaluate Removal for Each Child Individually

The caseworker evaluates the basis of authority for removing each child in the home individually.

Example

If …

and …

then …

there are exigent circumstances to remove one child from the home …

other children in the home are at risk of abuse, but are not in imminent danger …

the caseworker:

  •  removes the child for whom there are exigent circumstances; and

  •  seeks an emergency order for removal before removing the remaining children.

Texas Family Code §§262.101, 262.102

See also 2522 Definitions of Terms (Exigent Circumstances and Imminent Danger).

Determine That Removal Is Required

For a caseworker and supervisor to conclude that a child needs to be removed from the home, the removal must be based on one of the following:

  •  Consent

  •  A court order (either emergency or nonemergency, depending on the circumstances of the case)

  •  Exigent circumstances (that is, circumstances that require emergency removal before obtaining a court order)

For information on the types of court orders that support a removal, as well as what must be shown to support the court order, see 5410 Types of Court Orders and the Process for Obtaining a Court Order for Removal of a Child.

Obtain Consent From the Parent to Remove

Consent requires that the parent:

  •  affirmatively express that DFPS may remove the child from the home;

  •  otherwise indicate that DFPS may remove the child; or

  •  unequivocally refuse to accept parental responsibility for the child; that is, demand that DFPS remove the child.

For purposes of giving legal consent, a parent is defined as the child’s parent or court-ordered conservator or guardian.

See 2115 Terms Used in Primary Statutory Definitions.

Obtain a Court Order to Remove

If the parents do not consent to removal and the child needs protection, but there are not exigent circumstances as described in 2520 Determine the Basis of Authority for Removing a Child, the caseworker seeks an emergency court order before removing the child from the home.

The caseworker seeks the court order as soon as possible on the same or the next business day.

The court order must be signed by a judge before the child is removed. The caseworker must not rely on a judge’s verbal approval.

Texas Family Code §262.113

If …

then …

the county or district attorney representing DFPS is unwilling to seek the court order that the caseworker and the supervisor have determined is appropriate, …

the caseworker immediately discusses the case with the regional attorney.

the courthouse is not open at the time that the caseworker makes the decision to remove the child, …

the caseworker must:

  •  put protective measures into place to secure the safety of the child until a court order can be obtained; and

  •  obtain an emergency court order when the court opens.

If the caseworker is concerned about whether protective measures can ensure the child’s safety, …

the caseworker consults with the supervisor to explore options, including whether the circumstances justify immediate removal (that is, whether removal based on exigent circumstances is appropriate.

See also 5410 Types of Court Orders and the Process for Obtaining a Court Order for Removal of a Child.

Remove in an Emergency Without a Court Order (Exigent Circumstances)

The caseworker does not remove a child without the parent’s consent or a court order, unless:

  •  the caseworker and supervisor determine that the circumstances require immediate removal (that is, that there are exigent circumstances); and

  •  the program director gives approval to remove the child before obtaining a court order.

See also 5410 Types of Court Orders and the Process for Obtaining a Court Order for Removal of a Child.

2521 Types of Court Orders

CPS May 2009

Emergency Order

To grant an emergency court order, the court must find that:

  •  there is immediate danger to the child’s physical health or safety OR that the child is a victim of neglect or sexual abuse;

  •  continuing to live in the home is contrary to the child’s welfare;

  •  there is no time for a full adversary hearing; AND

  •  CPS has made reasonable efforts to prevent removal.

See:

Texas Family Code §262.102

2522 Definitions of Terms (Exigent Circumstances and Imminent Danger)

Non-Emergency Court Order

A non-emergency order is a special order. The child’s safety must be carefully weighed against the time required to obtain a court setting and prepare for a hearing.

To grant a non-emergency order, DFPS must show to the court that:

  •  reasonable efforts have been made to prevent the child’s removal from the home; and

  •  allowing the child to remain in the home would be contrary to his or her welfare.

See Texas Family Code §262.113.

The worker and supervisor consider filing a request for a non-emergency court hearing if:

  •  the facts of the investigation do not support an emergency removal with or without a court order; or

  •  the court has denied CPS’s petition for an emergency order.

The worker files with the court an affidavit containing the facts that support DFPS’s claims about reasonable effort and the child’s welfare. A hearing is then scheduled so that all parties, including the parents, are allowed to present their position to the judge.

2522 Definitions of Terms (Exigent Circumstances and Imminent Danger)

CPS May 2009

These terms are used when determining the basis of authority for removing a child.

Exigent Circumstances

Exigent circumstances means that based on the totality of the circumstances there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if the child remains in the home. An exigent circumstance requires immediate action.

Imminent Danger

Imminent danger means there is an immediate threat to the physical health or safety of the child, or that sexual abuse is about to occur to the child.

For a belief that a child is in imminent danger to be reasonable, it must be supported by the totality of circumstances including the following:

Circumstances to Consider

Specific Considerations

Is there time to obtain a court order?

After the worker and supervisor have weighed everything they know about the immediate danger to the child, they consider whether the time it takes to obtain a court order would place the child in imminent danger.

If the answer is yes, then an emergency removal without a court order is appropriate.

If the answer is no, then an emergency removal without a court order would not be appropriate, unless other factors and circumstances support it.

Consider All Circumstances

The worker and supervisor must consider all of the circumstances in the case. The fact that the courthouse is closed does not automatically support a removal without a court order; the fact that the courthouse is open does not automatically require that a court order be obtained before the removal.

What is the nature of the abuse?

The worker and the supervisor must consider the severity, duration, and frequency of the abuse, based on the evidence for one or more of the following:

  •  The extent of harm or potential harm

  •  How recently the abuse occurred

  •  Whether the abuse was committed against multiple children

  •  Whether there is a pattern of abuse or the abuse was an insolated incident

  •  Whether there is a condition that requires immediate medical attention

In the Case of Neglect

While neglect cases do not routinely give rise to the type of imminent danger necessary to support a removal without a court order, the decision to remove without a court order must not be based on the allegation assigned in the CPS investigation.

The removal must be based on a determination of whether the child is in imminent danger of abuse or serious harm, based on the information discovered in the initial investigation, regardless of whether the allegation is PHAB (physical abuse), SXAB (sexual abuse), NSUP (neglectful supervision) or other types of neglect, and so on.

How strong is the evidence supporting the allegations?

The worker and the supervisor consider whether the allegations are reliable in light of the strength of the evidence supporting them.

Such considerations include:

  •  the source of the allegations;

  •  whether the allegations have been corroborated; and

  •  all other evidence the worker can gather before making a determination about an emergency removal, such as:

  •  information available in the IMPACT system about the family,

  •  other open stages of service and information from other caseworkers,

  •  information from law enforcement, and

  •  any additional information that can be gathered while protecting the child’s safety.

Families With a History of CPS Involvement

A history of CPS involvement with the family is not enough, in and of itself, to support a conclusion that the danger to the child is immediate. The question is not whether CPS has been involved, but whether CPS’s involvement supports a conclusion that the child is in danger now.

Is there a risk that the parent will flee with the child?

The worker must consider whether there are objective indications that the parent will flee with the child, such as:

  •  a threat made by the parent to that effect;

  •  a prior CPS history of the parent fleeing; or

  •  a parent who is visiting Texas, rather than living in Texas.

Is there a less extreme solution to the problem?

CPS is obligated to make reasonable efforts to prevent removal; that is, efforts that are consistent with the circumstances and provide for the child’s safety. See Texas Family Code §262.101.

When removal is being considered, the worker must attempt to implement a solution to the family’s problems that is less extreme than an involuntary removal, as long as the child’s safety can be assured.

Possible solutions may include:

  •  a parental child safety placement;

  •  a safety plan that would enable the child to remain in the home while still protecting the child, including removing the alleged perpetrator from the home; or

  •  provide family-based safety services.

What harm to the child could result from removal?

When considering the effects on the child being removed, the safety of the child must always take priority.

 

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